Cavicchi v. Koski

• Decision Date: 31 October 2006
• Docket Number: 05-P-1358
• Citation: 855 N.E.2d 1137,67 Mass. App. Ct. 654
• Parties: John CAVICCHI v. William T. KOSKI & another.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

855 N.E.2d 1137

67 Mass. App. Ct. 654

John CAVICCHI v. William T. KOSKI & another.¹

05-P-1358

Appeals Court of Massachusetts, Suffolk.

Argued April 6, 2006.

Decided October 31, 2006.

Anthony M. Maio for the plaintiff.

Marion M. Kearns, Boston, for the defendants.

Present: GREENBERG, DUFFLY, & KAFKER, JJ.

DUFFLY, J.

Attorney John Cavicchi succeeded in having the conviction of his client, Peter J. Limone, vacated and was then retained by Limone to represent him in an anticipated civil damage suit for wrongful incarceration. Soon after Limone's release from prison in January, 2001, Cavicchi and the defendant, Attorney William T. Koski, who had assisted in the criminal matter, entered into a written contingent fee agreement with Limone governing representation in the anticipated civil action; later agreements added two attorneys and additional claimants. When Cavicchi was subsequently discharged by the clients, he filed a complaint in Superior Court against Koski and his law firm, asserting theories of tort liability and violations of G.L. c. 93A, § 11.² All four counts of the complaint were dismissed and Cavicchi filed this appeal.

Discussion. The dismissal of a complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), will be affirmed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977), quoting from Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "The allegations in the complaint will be treated as true, and the plaintiff is entitled to all favorable inferences as well." General Motors Acceptance Corp. v. Abington Cas. Ins. Co., 413 Mass. 583, 584, 602 N.E.2d 1085 (1992). See Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 748-749, 840 N.E.2d 518 (2006).

According to the complaint, Cavicchi was responsible for causing Limone's 1968 murder and conspiracy convictions to be vacated in January, 2001; Cavicchi did not submit a bill to Limone at that time. Later in January, following Limone's release from prison, he entered into a contingent fee agreement with Cavicchi and Koski, governing the compensation arrangement in connection with their representation of Limone in a civil suit seeking damages for wrongful incarceration. Some months after this initial agreement had been signed, Cavicchi and Koski entered into additional contingent fee agreements — one with Limone and members of Limone's family, and another with the administrator of the estates of Henry Tameleo (whose conviction had also been vacated) and Jeanette Tameleo (collectively, the "clients"), in connection with the wrongful incarceration of Limone and Tameleo.³

In August, 2002, Cavicchi was discharged by Limone and the Limone family members from representing them and the Tameleos in the civil matter.⁴ Cavicchi then sent Limone a bill for $99,400, in connection with services rendered in the criminal matter, but Limone refused to pay the bill, asserting that the services had been provided on a pro bono basis. Cavicchi alleges that at all relevant times, he and Limone "maintained an excellent business relationship," and that Koski "did intentionally encourage, instruct and/or command . . . Limone to not pay [Cavicchi's] bill" for services rendered in connection with the criminal proceedings.

Additional allegations of particular relevance to the claims on appeal (and denied by the defendants, though we assume their truth for the purposes of our discussion), are set out below:

"Upon information and belief, . . . Koski . . . instituted an intentional and malicious interference with the intention to undermine [Cavicchi's] professional and contractual agreements with [the clients], by secretly disparaging [Cavicchi's] good name and reputation, and unfairly and deceptively instructing [the clients] to breach their contracts with [Cavicchi].

". . .

"Upon information and belief, . . . Koski . . . maliciously and intentionally made material misrepresentations to [the clients] about . . . Cavicchi.

" "The aforementioned conduct of . . . Koski . . . was done knowingly with the intention of terminating the contractual relationship between . . . Cavicchi . . . and [the clients], in order to advance his own economic interest."

1. Interference with contractual or advantageous business relations. The complaint alleges that Koski interfered with advantageous contractual relationships and with advantageous business relationships by inducing the clients to refuse to pay Cavicchi for services rendered in connection with the criminal matter and to terminate their contracts with Cavicchi in connection with the civil actions for wrongful incarceration. The substantive elements of these torts are substantially similar. See Shafir v. Steele, 431 Mass. 365, 370, 727 N.E.2d 1140 n. 10 (2000). "In order to make out a claim for interference with advantageous business relations, the plaintiff must prove that (1) he had a business relationship for economic benefit with a third party, (2) the defendants knew of the relationship, (3) the defendants interfered with the relationship through improper motive or means, and (4) the plaintiff's loss of advantage resulted directly from the defendants' conduct." Kurker v. Hill, 44 Mass.App.Ct. 184, 191, 689 N.E.2d 833 (1998). To make out a claim of tortious interference with contractual relations, a plaintiff must demonstrate that "(1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant's interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions." Draghetti v. Chmielewski, 416 Mass. 808, 816, 626 N.E.2d 862 (1994). "[I]mproper conduct, beyond the interference itself, is `an element both in the proof of intentional interference with performance of a contract . . . and in the proof of intentional interference with a prospective contractual relationship.'" Hunneman Real Estate Corp. v. Norwood Realty, Inc., 54 Mass.App.Ct. 416, 427, 765 N.E.2d 800 (2002), quoting from United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816, 551 N.E.2d 20 (1990).

The only substantive element at issue in this appeal is the defendants' interference through improper conduct with Limone's agreement to pay Cavicchi's fee in the criminal matter and Cavicchi's anticipated legal representation of the clients in the civil suit. The improper conduct "may include ulterior motive (e.g., wishing to do injury) or wrongful means (e.g., deceit or economic coercion)," Schwanbeck v. Federal-Mogul Corp., 31 Mass.App.Ct. 390, 412, 578 N.E.2d 789 (1991), S.C., 412 Mass. 703, 592 N.E.2d 1289 (1992); the plaintiff need not prove both. Draghetti v. Chmielewski, 416 Mass. at 816 n. 11, 626 N.E.2d 862.⁵ Improper means include violation of a statute or common-law precept, e.g., by means of threats, misrepresentation, or defamation. United Truck Leasing Corp. v. Geltman, 406 Mass. at 817, 551 N.E.2d 20. As to improper motive, evidence of retaliation or ill will toward the plaintiff will support the claim. Draghetti v. Chmielewski, supra at 817, 626 N.E.2d 862. Contrast United Truck Leasing Corp. v. Geltman, supra (defendant's "motives were to benefit his customers and himself financially"; insufficient evidence to "warrant a finding that his real motive . . . was to hurt [plaintiff]"). See generally Restatement (Second) of Torts § 767 (1979) (setting forth factors to consider in determining whether an interference is improper in motive or means).

a. Interference with advantageous business relations. To the extent that Cavicchi's claim rests on Koski's interference by improper motive with Cavicchi's representation of the clients in the civil matter, (i.e., that Koski disparaged Cavicchi "with the intention of terminating the contractual relationship between [Cavicchi] and [the clients] in order to advance his own economic interest"), it is precluded, on policy grounds, by Walsh v. O'Neill, 350 Mass. 586, 589-590, 215 N.E.2d 915 (1966) (declining "to extend to the attorney client relationship the principle that interference with an existing business relationship, if malicious or without justification, is actionable [where] the relationship is not founded in a contract").⁶

Here, the complaint also sets forth a claim for tortious interference by improper means by asserting that Koski knowingly made material misrepresentations to the clients about Cavicchi's reputation that induced the clients to discharge him.⁷ The defendants argue that Walsh (in which the court rejected an attorney's claim against two other attorneys for tortious interference with a professional relationship) also precludes Cavicchi's claim of interference by improper means. We disagree.

The defendants here correctly observe that Cavicchi's complaint contains an allegation similar to that in count 1 of the complaint in Walsh, wherein it was alleged that the defendants, inter alia, circulated libelous statements about the plaintiff. 350 Mass. at 588, 215 N.E.2d 915. However, count 1 of the Walsh complaint also included claims for abuse of process and interference with a professional relationship. Faced with the prospect that the court would dismiss count 1 not on the merits, but for "confusing multiplicity,"⁸ id. at 589, 215 N.E.2d 915, the plaintiff abandoned the libel and abuse of process claims and asked the court to address only the tortious interference claim. This the court did, limiting its analysis to consideration whether interference "if malicious or without justification[ ] is actionable. . . ." Id. at 589-590, 215 N.E.2d 915. While holding that no such action could lie in the context of interference with an attorney-client relationship in the absence of a contract, the court nevertheless observed, "If the interferer uses...