Opinion
No. 12–P–1398.
2013-05-8
Kenneth P. WEISS & another v. Ira GROLMAN.
Accordingly, we do not disturb these findings and agree that both actions stem from the alleged failure to provide timely disclosure of the settlement offer.
By the Court (GRAHAM, KATZMANN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Kenneth P. Weiss and Green Shoe, Ltd. (collectively, plaintiff), appeal from the Superior Court's dismissal of their lawsuit against Attorney Ira Grolman (defendant). This case arises from the defendant's alleged legal malpractice with regard to the plaintiff's ability to dock his yacht at a marina in Gloucester, Massachusetts in May of 2005. On October 20, 2011, the plaintiff filed suit against the defendant alleging negligence, breach of contract, breach of fiduciary duty, intentional infliction of emotional distress, fraud, civil conspiracy, and violation of G.L. c. 93A. On May 29, 2012, the motion judge dismissed the plaintiff's lawsuit, finding that it was barred pursuant to Mass.R.Civ.P. 12(b)(9), as amended, 450 Mass. 1403 (2008), and Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). The plaintiff then appealed. Largely for the reasons set forth by the motion judge in her thorough memorandum of decision, we affirm. Discussion. 1. Rule 12(b)(9). Under Mass.R.Civ.P. 12(b)(9), a party may file a motion to dismiss where a prior action is pending between the two parties in a court in this Commonwealth. “Dismissal under this rule is proper when the same parties are involved in two actions, one begun before the other, and ‘[i]t is apparent from the face of the present complaint ... that all the operative facts relied on to support the present action had transpired prior to the commencement of the first action.’ “ Zora Enterprises, Inc. v. Burnett, 61 Mass.App.Ct. 341, 346 (2004), quoting from Keen v. Western New England College, 23 Mass.App.Ct. 84, 85–87 (1986). See Harvard Community Health Plan, Inc. v. Zack, 33 Mass.App.Ct. 649, 652 (1992). Rule 12(b)(9) precludes a plaintiff from attempting in a subsequent action to undermine a court's judgment on the merits of a claim. See Yentile v. Howland, 26 Mass.App.Ct. 214, 216 (1988). See also Keen v. Western New England College, supra at 85 n. 3.
In this case, the plaintiff has filed two parallel actions arising from the same set of facts. The plaintiff first filed suit on May 22, 2008, against Attorney Scott Donahue and the law firm of Donahue, Grolman & Earle, which represented the plaintiff in his efforts to secure docking for his yacht. In his original complaint, the plaintiff asserted claims of negligence, breach of contract, and breach of fiduciary duty against the law firm. During the discovery process, the plaintiff learned that it was Attorney Grolman who failed to communicate to the plaintiff an offer by the marina to dock the yacht. Two days before the scheduled end of discovery, the plaintiff filed a motion for leave to file a second amended complaint and to add Attorney Grolman as a defendant. On November 19, 2010, a Superior Court judge denied the motion. However, the plaintiff did not pursue an appeal of this decision.
Instead, the plaintiff then initiated the present action against Attorney Grolman on October 20, 2011. As the motion judge found, the complaint in the second case is nearly identical to the proposed second amended complaint in the 2008 action. The plaintiff did allege two new facts: (1) Attorney Grolman intentionally misled him by failing to provide him with the offer made by the marina, and (2) Attorney Grolman “surreptitiously” added a paragraph to an affidavit that the plaintiff had already executed, which made reference to the offer by the marina, and was filed in court in support of an injunction against the marina. In addition to setting forth common-law claims, which were nearly identical to the claims in the first action, the plaintiff also included a G.L. c. 93A claim against Attorney Grolman.
The motion judge properly dismissed the plaintiff's claims in the present action under rule 12(b)(9) because the issues arose from the same core facts and the parties in both actions are the same. See Harvard Community Health Plan, Inc. v. Zack, 33 Mass.App.Ct. at 652. First, “[a]n ‘action’ or ‘cause of action’ is defined as ... ‘[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.’ “ Sisson v. Lhowe, 460 Mass. 705, 709 (2011), quoting from Black's Law Dictionary 251 (9th ed.2009). Here, the motion judge appropriately found that the two cases arose from the same group of operative facts:
“[T]here can be no doubt that the factual basis of the plaintiffs' claims, and the issues raised, are the same as those in the 2008 action. Although the complaint adds allegations of ‘surreptitious' alteration of an affidavit, and of misrepresentations regarding the necessity of litigation, it ties these allegations to the plaintiffs' injury only through the alleged failure to provide timely disclosure of the settlement offer. That failure, which was and remains the subject of the 2008 action, is central to all of the claims pled here.”
Accordingly, we do not disturb these findings and agree that both actions stem from the alleged failure to provide timely disclosure of the settlement offer.
Second, while the plaintiff did not formally name Attorney Grolman as a party to the first lawsuit, the plaintiff did name as a defendant the law firm Donahue, Grolman & Earle, in which Grolman is a partner. He is thus vicariously liable for all torts committed by the partnership. See G.L. c. 108A, § 15. Accordingly, Grolman was a party to the first suit.
In sum, the motion judge properly dismissed the lawsuit under rule 12(b)(9) because the plaintiff filed suit against a party (the defendant) already potentially liable in the 2008 action, and alleged claims that arose from the same set of facts that motivated the 2008 action. By filing suit against Attorney Grolman in 2011, the plaintiff improperly attempted to undermine, or circumvent, the court's decision in the original 2008 case. See Yentile v. Howland, 26 Mass.App.Ct. at 216. Instead of filing the present action, which is precluded by rule 12(b)(9), the plaintiff should have appealed the Superior Court's denial of his motion seeking leave to amend his original complaint and to add Attorney Grolman as a party.
2. Rule 12(b)(6). The motion judge properly found that since she determined to dismiss the lawsuit pursuant to rule 12(b)(9), she did not need to consider whether the statute of limitations barred the plaintiff from filing the present lawsuit against the defendant. Nevertheless, the motion judge briefly considered the issue and correctly found the suit to be time-barred. The cause of action against both the law firm and Attorney Grolman accrued at the time of the injury, in May of 2005. See Frankston v. Denniston, 74 Mass.App.Ct. 366, 373 (2009). Thus, the common-law claims expired in May of 2008, pursuant to G.L. c. 260, § 4, and the c. 93A claim expired in May of 2009, pursuant to G.L. 260, § 5A. Since the plaintiff filed the present action in October of 2011, all of his claims are also time-barred.
We also conclude that the motion judge did not err in failing to toll the applicable statute of limitations under the doctrines of fraudulent concealment or continuing representation. First, the defendant did not “fraudulently conceal[ ] the cause of such action from the knowledge of the [plaintiff].” G.L. c. 260, § 12. The doctrine does not apply when the plaintiff actually has knowledge of the cause of action. See Malapanis v. Shirazi, 21 Mass.App.Ct. 378, 386 n. 8 (1986). Second, the continuing representation doctrine does not apply “where the client actually knows that he suffered appreciable harm as a result of his attorney's conduct.” Lyons v. Nutt, 436 Mass. 244, 250 (2002). It has no application when a client has such knowledge because “then there is no ‘innocent reliance which the continued representation doctrine seeks to protect.’ “ Ibid., quoting from Cantu v. St. Paul Cos., 401 Mass. 53, 58 (1987). The plaintiff learned in May, 2005, that he had a cause of action against Grolman and, as a result, he cannot rely on either fraudulent concealment or continuing representation to toll the applicable statute of limitations.
Judgment affirmed.
Order denying motion for reconsideration or to alter or amend judgment affirmed.