Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C.

Citation25 Mass.App.Ct. 107,515 N.E.2d 891
PartiesJoseph J. COLUCCI et al. 1 v. ROSEN, GOLDBERG, SLAVET, LEVENSON & WEKSTEIN, P.C., et al. 2
Decision Date02 December 1987
CourtAppeals Court of Massachusetts
2

Erik Lund (Nancy E. Glowa, Boston, with him), for defendants.

Steven M. Brody, Boston, for plaintiffs.

Before GREANEY, C.J., and DREBEN and SMITH, JJ.

GREANEY, Chief Justice.

The plaintiffs brought an action in the Superior Court against the defendants, a lawyer and his law firm, alleging malpractice in the handling of an application for a temporary restraining order. The case was tried to a jury. The jury returned a general verdict for the plaintiffs and awarded damages. The defendants have appealed from the denial of their motion for judgment notwithstanding the verdict. 3 We reverse.

On the basis of the plaintiffs' evidence, the jury could have found the following facts. In September, 1977, the plaintiffs purchased an "interest" in a restaurant in Cambridge owned and operated by Marvalee Corporation (Marvalee). They began remodeling the restaurant, which was kept open during the renovations. On November 4, 1977 (a Friday), many employees of the restaurant went on strike and began picketing the premises. On that date, George Garfinkle, Marvalee's president, discussed the strike with the defendant, Mr. Barry Rosenthal, a lawyer and a stockholder in the defendant professional corporation. Garfinkle was acquainted with Rosenthal because Rosenthal represented the owner of the premises occupied by the restaurant and the creditor holding the note and security interest in connection with a sizeable loan to Marvalee. Rosenthal told Garfinkle that his firm could obtain a restraining order on Monday, November 7, to curtail the picketing, which was causing considerable harm to the restaurant's business. Rosenthal set up a meeting for Monday, November 7, 1977, with Garfinkle and the plaintiffs to discuss the matter further. At that meeting Rosenthal stated that "he felt he could get a court order that would stop the strike," and that "he could get it [a restraining order] the next day [Tuesday, November 8]." Rosenthal requested a $1,000 retainer to handle the case. The $1,000 was paid later on Monday and acknowledged in a receipt "as a retainer for legal services."

Rosenthal, who was not a trial lawyer, turned the case over to Mr. Nelson Lovins, another lawyer in the firm, who had considerable experience in general and business litigation. Lovins treated the case as an emergency matter. Together with another lawyer in the firm who had been assigned to assist him, Lovins immediately commenced research and work on the preparation of a complaint (and related materials) to obtain a temporary restraining order.

Lovins had not handled a case of this type before. As part of his preparation, he consulted with a lawyer who held a master's degree in labor law and who practiced in that field in Massachusetts, seeking the lawyer's advice on the handling of the case. By Thursday (November 10), the following documents had been prepared: a complaint seeking a temporary restraining order and a preliminary injunction (the complaint was brought by Marvalee and Garfinkle as plaintiffs and named the labor union representing the employees and the union's representative as defendants); affidavits of Garfinkle and the restaurant's assistant manager in support of the assertions in the complaint; and a legal memorandum discussing Marvalee's position on the issues in the strike and its entitlement to the relief sought. The pleadings were immediately filed in the clerk's office of the Superior Court in Suffolk County, and service was made on representatives of the union representing the picketing employees and their counsel. 4

That same day (November 10), Lovins appeared in the motion session of the Superior Court and argued his request for a temporary restraining order before a Superior Court judge. The request was opposed by the union. After argument, the application was denied by the judge on the ground that a temporary restraining order could be granted only by a three-judge panel convened under G.L. c. 212, § 30. This statute requires the Chief Justice of the Superior Court to designate three judges of that court to hear and determine proceedings involving or arising under G.L. c. 149, §§ 20B, 20C, or 24, or under G.L. c. 214, §§ 6 or 6A. Although Lovins had researched the law, and had consulted with a labor lawyer, he was unaware of the requirements of G.L. c. 212, § 30. The labor law specialist with whom Lovins had consulted also had not mentioned the possible need for a three-judge panel. However, Lovins was aware of the provisions of G.L. c. 214, § 6, which govern the proof necessary to obtain a restraining order or preliminary injunction in a labor dispute.

Lovins proceeded directly from the motion session to the office of the Administrative Justice of the Superior Court, where he obtained an order, pursuant to G.L. c. 212, § 30, appointing three judges of that court to hear and determine the matter. Lovins was advised, however, that the three-judge panel would not be able to convene for one or two weeks. Lovins then returned to the motion session and argued for reconsideration by the judge of his earlier order on the ground that the judge could, and should, in the circumstances demonstrated by the complaint and affidavits, exercise his general equity power to restrain the picketing, at least until the three-judge panel heard the case. The judge again denied relief on the basis that G.L. c. 212, § 30, deprived him of any authority to issue a temporary restraining order.

Lovins immediately sought review of the motion judge's order pursuant to G.L. c. 231, § 118, first par., in the single justice session of this court. A single justice heard argument on Lovins' petition. According to Lovins' testimony, the single justice expressed the view that, notwithstanding G.L. c. 212, § 30, he might have authority in some special circumstances to issue a temporary restraining order in this kind of dispute. The single justice concluded, however, that no special circumstances had been shown to warrant that relief. Accordingly, the single justice declined to disturb the motion judge's order.

That evening, Rosenthal met with the plaintiffs and Garfinkle and reviewed with them what had occurred that day in court. He then requested an additional payment of $1,000 before "lift[ing] a finger" to pursue the matter further. The plaintiffs refused to pay any further legal fees. Rosenthal and his firm stopped working on the case. By letter dated Monday, November 14, 1977, Rosenthal advised Garfinkle that Marvalee's note was in default, as was the rent due the landlord. (There had been previous instances of delays in payment of obligations to the creditor and the landlord. In those instances, Marvalee had apparently worked out satisfactory arrangements.) On November 16, 1977, possession of Marvalee's assets was taken by Rosenthal's firm under the rights conferred by the agreement securing the note. Rosenthal claimed that the assets were turned over peaceably by Garfinkle in exchange for a promise that Garfinkle would not be held personally liable on his guarantee of Marvalee's debts. The plaintiffs' claimed that the seizure was involuntary. On November 23, 1977, Marvalee filed for bankruptcy.

1. The plaintiffs' basic claims are that the defendants were negligent because (a) they proceeded too slowly in preparing and filing the action in the Superior Court; (b) they were unaware of the provisions of G.L. c. 212, § 30, which led the motion judge to deny the application for a temporary restraining order; and (c) they abandoned the case after the application had been denied when the plaintiffs refused to pay them an additional $1,000 in legal fees.

(a) and (b). 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, see Caverly v. McOwen, 123 Mass. 574, 578 (1878); McLellan v. Fuller, 226 Mass. 374, 377-378, 115 N.E. 481 (1917); Pongonis v. Saab, 396 Mass. 1005, 486 N.E.2d 28 (1985); Glidden v. Terranova, 12 Mass.App.Ct. 597, 597-598, 427 N.E.2d 1169 (1981); that the client has incurred a loss; and that the attorney's negligence is the proximate cause of the loss, see McLellan v. Fuller, supra at 378, 115 N.E. 481; Nolan, Tort Law § 185 (1979). "But it must not be understood that an attorney is liable for every mistake that may occur in practice, and held responsible for the damages that may result. If the attorney acts with a proper degree of attention, with reasonable care, and to the best of his skill and knowledge, he will not be held responsible. Some allowance must always be made for the imperfection of human judgment." Stevens v. Walker & Dexter, 55 Ill. 151, 153 (1870). See Gilbert v. Williams, 8 Mass. 51, 56 (1811). Further, an allegation of malpractice is not self-proving. Expert testimony is generally necessary to establish that an attorney failed to meet the standard of care owed in the particular circumstances, Pongonis v. Saab, 396 Mass. 1005, 486 N.E.2d 28 (1985), and cases cited, unless the alleged malpractice "is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence". Ibid.

The plaintiffs tried this case without presenting expert testimony to establish the standard of care. We think such testimony was necessary to warrant a finding that the defendants were negligent because Lovins proceeded too slowly in preparing the case or because he was unaware of the provisions of G.L. c. 212, § 30. There is no claim that the task of obtaining a temporary restraining order, in the circumstances shown, constituted the practice of a legal specialty which could not have been handled by a trial lawyer with Lovins' experience in...

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