Opinion
16-P-1100
04-24-2017
Mark TRURAN & another v. Philip N. BEAUREGARD& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Mark Truran and other members of the Truran family purchased and rehabilitated a historic commercial building in New Bedford. The project cost more than anticipated, leading to fee disputes and causing the project's architect, Stephen L. Kelleher, to sue the Trurans, successfully, for breach of contract and G. L. c. 93A violations (Kelleher action). The Trurans then brought this action asserting legal malpractice and other claims against the defendants, the attorneys who had defended them in the Kelleher action. On the defendants' motion, a Superior Court judge ordered summary judgment dismissing the Trurans' complaint and awarding the defendants $56,521.28 on their counterclaim seeking payment of fees due under a promissory note. The Trurans appeal; we affirm.
After a nine-day trial in August, 2010, a jury found in favor of Kelleher on his breach of contract and G. L. c. 93A claims, awarding damages in the amount of $43,139.18. The jury found that the Trurans' unfair and deceptive acts were committed wilfully and knowingly and rejected all of their counterclaims. The trial judge in the Kelleher action agreed with the jury's G. L. c. 93A findings and assessed double damages and attorney's fees. This court affirmed the judgment. See Kelleher v. Truran, 84 Mass. App. Ct. 1123 (2013).
On appeal, the Trurans make no argument challenging the dismissal of their claims other than the malpractice claim, nor do they challenge the judgment adjudicating them liable on the counterclaim. Any such arguments are therefore waived. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 n.1 (2005).
"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 499 n.16 (2010), quoting from Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358 (1997). The moving party may meet its burden by "affirmatively demonstrating the absence of a triable issue." Ibid. Our review of a grant of summary judgment is de novo. See Murray v. Hudson, 472 Mass. 376, 384 (2015).
"To prevail on a claim of negligence by an attorney, a client must demonstrate that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained ...; that the client has incurred a loss; and that the attorney's negligence is the proximate cause of the loss." Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987) (Colucci ). Generally, expert testimony is required to define the standard of care owed in a particular case and the attorney's deviation from it. See Brown v. Gerstein, 17 Mass. App. Ct. 558, 566 (1984). An exception to the necessity of expert testimony lies where the "claimed legal malpractice [was] so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence." Pongonis v. Saab, 396 Mass. 1005, 1005 (1985). We conclude, as did the motion judge here, that this case falls within the general rule and not the exception.
On appeal, the Trurans argue that the defendants failed to do anything at all to defend them against Kelleher's claim under G. L. c. 93A that the Trurans had induced him to continue working for them without any intention of making payment. In the Trurans' view, the defendants should have elicited evidence during the direct examination of the Trurans that would have rebutted Kelleher's theory and evidence of inducement. The gist of this malpractice claim is that an attorney exercising reasonable care would have proceeded differently in the defense of the claim and would have obtained a better result. This was a subject beyond the ordinary ken of lay jurors, requiring guidance from an expert. See DiPiero v. Goodman, 14 Mass. App. Ct. 929, 929-930 (1982), cert. denied, 460 U.S. 1029 (1983).
The case of Glidden v. Terranova, 12 Mass. App. Ct. 597 (1981), is inapposite. In that case, the attorney, it could be found, did do nothing. As a direct result of the attorney's failure to show up at two important court hearings to defend his clients as promised, one client was arrested and imprisoned. See id. at 599. A jury drawing on their common knowledge could infer negligence from such conduct.
Here, in contrast, even the very limited materials before us demonstrate that the defendants did pursue a defense to Kelleher's G. L. c. 93A claim. They did so by moving for a directed verdict at the close of Kelleher's evidence; by calling Mark Truran and an expert on architecture and construction as witnesses as part of the defense case; by arguing that despite the jury's finding of a G. L. c. 93A violation, the judge should not award multiple damages; and by moving after trial for a judgment notwithstanding the verdict or for a new trial. The defense against the G. L. c. 93A claim achieved some success, by persuading the jury that the Trurans had a legitimate basis for disputing about $17,000 of Kelleher's fee, which caused the jury to deduct that amount from what they awarded Kelleher as damages.
Although there is some suggestion in this limited record that the expert's testimony related mainly to the Trurans' counterclaims, the judge in the Kelleher action explained that those counterclaims were an effort to show why the Trurans had not paid certain amounts to Kelleher, and thus were interwoven with Kelleher's own claims.
The jury in the Kelleher action sat through a lengthy trial involving complicated issues and a significant amount of evidence. The judge in that action, in a posttrial ruling, stated that defense counsel had "worked diligently and effectively during the trial of the case." Without assistance from an expert witness, lay jurors in the present case would have no knowledge of what the standard of care required, and no basis to conclude that the defense of Kelleher's c. 93A claim—in the overall context of the nine-day trial—fell below it. And even if lay jurors could somehow reach that conclusion, they would have no basis to conclude that but for the assertedly inadequate defense, the Trurans, more probably than not, would have obtained a better result. A legal malpractice plaintiff must show that "but for the attorney's failure, the client probably would have been successful in the ... litigation giving rise to the malpractice claim." Colucci, 25 Mass. App. Ct. at 113. See Frullo v. Landenberger, 61 Mass. App. Ct. 814, 818 (2004). As in those cases, expert testimony would have been necessary on the causation issue here. Because the Trurans admittedly lacked such testimony, summary judgment was properly granted for the defendants.
Judgment affirmed.