728 F.2d 551 (1st Cir. 1984), 83-1654, Levin v. Berley

Docket Nº83-1654.
Citation728 F.2d 551
Party NameIrving M. LEVIN, etc., et al., Plaintiffs, Appellants, v. David R. BERLEY, Defendant, Appellee.
Case DateFebruary 24, 1984
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

Page 551

728 F.2d 551 (1st Cir. 1984)

Irving M. LEVIN, etc., et al., Plaintiffs, Appellants,

v.

David R. BERLEY, Defendant, Appellee.

No. 83-1654.

United States Court of Appeals, First Circuit

February 24, 1984

Argued Jan. 6, 1984.

Page 552

Elizabeth Nevins Mulvey, Boston, Mass., with whom Andrew C. Meyer, Jr., and Lubin & Meyer, Boston, Mass., were on brief, for plaintiffs, appellants.

Edward T. Hinchey, Boston, Mass., with whom Sloane & Walsh, Boston, Mass., was on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and PETTINE, [*] Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

This is an appeal from a judgment of the district court granting defendant's motion for summary judgment. Irving Levin, a resident of Massachusetts, brought this diversity action against attorney David Berley, a Florida resident, in the United States District Court for the District of Massachusetts. Levin charged Berley with malpractice in drawing the will of Levin's deceased wife, Evelyn.

Berley drafted the will in 1972 under instructions to take full advantage of the marital deduction in the federal estate tax law. Evelyn Levin died on December 31, 1975 and plaintiff, as executor of his wife's will, filed a federal estate tax return on October 4, 1976 in which he claimed a marital deduction. In 1978 the IRS contacted Levin questioning the amount of the marital deduction. Attorney Lippman, who represented Levin in administration of the estate, wrote Berley on January 23, 1979, stating, "Mr. Levin has requested that I write you this letter advising you that he plans to hold you accountable for alleged errors made in the will of his wife Evelyn." On March 9, 1979, the IRS sent Levin notice of a $60,000 deficiency in the payment of estate taxes due to the disallowance of the marital deduction claimed on Mrs. Levin's New York stock account. After receiving Lippman's letter and learning of the deficiency notice, Berley told Levin that he would testify before the tax court and that the controversy would be resolved in Levin's favor. On April 9, 1981, the tax court decided in favor of the IRS. This court later affirmed that decision in an unpublished opinion.

Levin filed this action against Berley on October 12, 1982, suing both in his individual capacity and as executor of his wife's will. In addition to malpractice, he alleged a violation of Mass.Gen.Laws ch. 93A, the Massachusetts unfair trade practices act. The district court allowed summary judgment for defendant on the malpractice claim, holding that it was barred by the statute of limitations. It also granted summary judgment for the defendant on the Chapter 93A claim, holding that Levin lacked standing. Levin has appealed from both judgments.

I.

The malpractice claim is governed by Massachusetts law, which provides for a three-year statute of limitations for attorney

Page 553

malpractice. Mass.Gen.Laws ch. 260, Sec. 4. The relevant question is when Levin's malpractice claim "accrued" under the statute of limitations. The district court applied the Massachusetts "discovery rule," which tolls the statute of limitations until a plaintiff knows or reasonably should know that he has been harmed by the defendant's conduct. Franklin v. Albert, 381 Mass. 611, 619, 411 N.E.2d 458, 463 (1980). The discovery rule applies to attorney malpractice:

The attorney, like the doctor, is an expert, and much of his work is done out of the client's view. The client is not an expert; he cannot be expected to recognize professional negligence if he sees it, and he should not be expected to watch over the professional or to retain a second professional to do so. The relation of attorney and client is highly fiduciary in its nature.

Hendrickson v. Sears, 365 Mass. 83, 90, 310 N.E.2d 131, 135 (1974); see also Robertson v. Hirsh, 276 Mass. 452, 177 N.E. 676 (1931).

In Hendrickson, the plaintiff sued his attorney in 1971 for failing to uncover an encumbrance in the title to property which the attorney certified in 1961. The plaintiff did not discover the error until 1970 when a prospective purchaser searched the title. The Massachusetts Supreme Judicial Court held that the defect in the certified title was "inherently unknowable" to the client and that the statute of limitations began to run only in 1970 when the error was discovered, not in 1961 when the mistake was made. 365 Mass. at 90-91, 310 N.E.2d at 136. We assume, without deciding, that the faulty language in the will was similarly "inherently unknowable" to the Levins. Nonetheless, Levin knew or should have known of the blunder by at least January 29, 1979 when attorney Lippman sent Berley the letter regarding Mr. Levin's intent to hold Berley responsible for "alleged errors made in the will." Levin denies knowledge of this letter, but a client is charged with the knowledge of his attorney. 1...

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47 practice notes
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • January 3, 1986
    ...until a plaintiff knows or reasonably should know that he or she has been harmed as a result of the defendant's conduct. Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984) (citing Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458, 460 (1980)). The Supreme Judicial Court has not decided wheth......
  • 955 F.2d 776 (1st Cir. 1992), 91-1291, Attallah v. United States
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • February 5, 1992
    ...basis for the cause of action must have been "inherently unknowable" at the time of the injury. See, e.g., Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984). After a careful examination of the record in the light most favorable to plaintiffs, we find that the principles establishe......
  • 29 Mass.App.Ct. 215 (1990), 89-P-565, International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc.
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • September 14, 1990
    ...Paul Cos., 401 Mass. 53, 57, 514 N.E.2d 666 (1987). Bowen v. Eli Lilly & Co., 408 Mass. at 207, 557 N.E.2d 739. See Levin v. Berley, 728 F.2d 551, 553-555 (1st Cir.1984). In the general run of cases, negligence actions accrue when the accident happens and a person is injured. Cannon v. ......
  • Kennedy v. Goffstein, 100504 MACA, 03-P-676
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • October 5, 2004
    ...attorney and incurred legal fees; "[plaintiff] had been harmed by having to pay legal fees to [attorney]. Accord Levin v. Berley, 728 F.2d 551, 554 [1st Cir. 1984] [retention of another attorney is harm in the form of additional legal fees]; Whitcomb v. Pension Dev. Co., 808 F.2d 167, ......
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47 cases
  • 327 F.Supp.3d 1322 (D. Hawai'i 2018), Civ. 13-00502 DKW-RLP, Sunday’s Child, LLC v. Irongate AZREP BW LLC
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • June 6, 2018
    ...or has been given a notification of it.’ " (quoting Restatement (Second) of Agency § 9(3) (1958) ); and Levin v. Berley, 728 F.2d 551, 553 (1st Cir. 1984) ("Levin denies knowledge of this letter, but a client is charged with the knowledge of his attorney."......
  • 628 F.Supp. 1219 (D.Mass. 1986), Civ. A. 82-1672, Anderson v. W.R. Grace & Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • January 3, 1986
    ...until a plaintiff knows or reasonably should know that he or she has been harmed as a result of the defendant's conduct. Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984) (citing Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458, 460 (1980)). The Supreme Judicial Court has not decided wheth......
  • 955 F.2d 776 (1st Cir. 1992), 91-1291, Attallah v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • February 5, 1992
    ...basis for the cause of action must have been "inherently unknowable" at the time of the injury. See, e.g., Levin v. Berley, 728 F.2d 551, 553 (1st Cir.1984). After a careful examination of the record in the light most favorable to plaintiffs, we find that the principles establishe......
  • 29 Mass.App.Ct. 215 (1990), 89-P-565, International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc.
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • September 14, 1990
    ...Paul Cos., 401 Mass. 53, 57, 514 N.E.2d 666 (1987). Bowen v. Eli Lilly & Co., 408 Mass. at 207, 557 N.E.2d 739. See Levin v. Berley, 728 F.2d 551, 553-555 (1st Cir.1984). In the general run of cases, negligence actions accrue when the accident happens and a person is injured. Cannon v. ......
  • Request a trial to view additional results