Comeau v. Walsh
| Decision Date | 15 December 1998 |
| Docket Number | 903768 |
| Citation | 1998 MBAR 395 |
| Parties | Annie Comeau v. William Walsh et al.1 |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 9 Mass. L. Rptr. 403
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): BOHN
On November 5, 1998, this matter was before the Court for a hearing on the motion for summary judgment of defendant Dianne Alves ("Alves"). Alves argues that the plaintiff, Annie Comeau ("Comeau"), will be unable to establish at trial the existence of an attorney-client relationship between them which would allow Comeau to prevail on her individual claims for legal malpractice. Alves argues further that Comeau is precluded from pursuing legal malpractice claims assigned to her by a third party.
In opposition to the motion for summary judgment, Comeau contends that there is a genuine issue of fact with regard to whether she can establish a duty owed to her by Alves, and that she is within her rights as assignee to pursue the third-party malpractice claims.
For the following reasons, summary judgment will enter in favor of Alves on Counts II, and IV of Comeau's complaint.
The following facts are undisputed.
This legal malpractice action arises out of a real estate transaction involving a three-family home located at 61 Jackson Street in Cambridge, Massachusetts (hereinafter known as "property"). Edward and Eleanor Comerford owned the property, and lived there as owner occupants from 1964 to 1971. As long as the Comerfords remained owner occupants their property was not subject to rent control by the City of Cambridge.
In 1971, the Comerfords moved to Lexington. The Cambridge Rent Control Board ("Board") sent the Comerfords a notice in 1981 that the property must be registered with the Board, as their property was no longer owner-occupied.
On August 21, 1981, a real estate closing took place at the law firm of Ferraro and Walsh. Apparently to avoid registering the property with the Rent Control Board, the Comerfords sold their property to Comeau, a long term tenant at the property, for $110,000.00, and took back a so-called "wrap-around" mortgage on the property. Comeau was not represented by independent counsel at the closing. The Comerfords were represented by defendants Walsh, Schwartz (an associate in the firm), and, according to the allegations of the complaint, Alves.
In February of 1982, Edward Comerford returned to the law firm of Ferraro and Walsh with Comeau. At that time, Comeau signed trust documents for the property. Alves, an attorney with Ferraro and Walsh, notarized Comeau's signature on the trust documents.
In or about 1988, relations between the Comerfords and Comeau broke down. The Comerfords moved back into the third floor of the building and served Comeau with notices to quit. There is a letter extant in which Alves appears to have communicated to another lawyer that she was representing the Comerfords in the course of these disputes.2
In 1989, Comeau hired an attorney and commenced an action in the Land Court against the Comerfords to quiet title to the property. The case was eventually settled, with Comeau agreeing to a modified mortgage arrangement of $160,000,00. At the time the case was settled, the property was valued between $225,000.00 and $295,000.00. As part of the settlement, the Comerfords assigned to Comeau any and all claims they may have had against the defendants in the instant case.
Comeau then brought this legal malpractice action on her own behalf and as assignee of the Comerfords' causes of action.
Alves asks this Court to grant summary judgment in her favor, as a matter of law, pursuant to Mass.R.Civ.P. 56. A court grants summary judgment when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983), Community National Bank v. Dawes, 369 Mass. 550, 553 (1976) Mass.R.Civ.P. 56(c). "If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat [the] motion..." Id.
A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party is unlikely to submit proof of that element at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). "[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
Comeau's complaint alleges five counts against Alves and other members of the law firm of Ferraro & Walsh, Alves's previous employer. The first three counts Comeau asserts in her own name, Count I for Fraud, Count II for Legal Malpractice, and Count III for violation of G.L.c. 93A. The final two counts Comeau asserts as assignee of the Comerfords, Count IV for Legal Malpractice and Count V for violation of G.L.c. 93A. Alves's motion for summary judgment addresses only the claims against her for legal malpractice; the motion does not address the separate fraud and 93A counts, which are grounded on different factual bases.3
Alves presents alternative grounds for the allowance of summary judgment in her favor on the legal malpractice claims, which shall be addressed separately here.
With regard to Comeau's individual claim against her, Alves contends that Comeau cannot establish an attorney-client relationship between herself and Alves so as to give rise to a claim for legal malpractice. To establish a claim for legal malpractice, Comeau must prove that an attorney-client relationship existed between Alves and her. See DaRoza v. Arter, 416 Mass. 377 (1993). Comeau may establish such a relationship in two ways, by demonstrating that she maintained an express or implied relationship with Alves, or by demonstrating that she relied on Alves's legal advice and that reliance was foreseeable. See Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 524 (1989); see also Page v. Frazier, 388 Mass. 55, 62-66 (1983).
Drawing all inferences in favor of Comeau, there is a lack of any evidence that would support her claim for legal malpractice against Alves. It is incontrovertible that Comeau and Alves did not share an express or implied attorney-client relationship, and therefore, any claim for negligence must be based on Comeau's foreseeable reliance on Alves's services. The only contact between Alves and Comeau was Alves's notarization of Comeau's signature on trust documents.4 Comeau has presented no evidence that Alves had any part in preparing these documents or encouraging Comeau to sign these documents. Comeau has presented no evidence that she "relied" on Alves's notarization of that document, and has failed to demonstrate that such reliance would have been foreseeable.
Moreover, as an additional grounds for allowing summary judgment on Count II, this Court is of the opinion that Alves's notarization of Comeau's signature did not constitute the provision of legal services. The notarization could have been performed by any number of nonlawyer notary publics and accordingly should not give rise to a claim for legal malpractice.
For these reasons, Alves is entitled to summary judgment on Comeau's individual claims against her for legal malpractice.
Counts IV and V of Comeau's amended complaint assert the Comerfords' legal malpractice and 93A causes of action. Comeau contends that she was assigned the right to prosecute these claims as part of her settlement with the Comerfords of an action in the Land Court. In seeking summary judgment on Count IV alleging legal malpractice, Alves argues that the Comerfords' legal malpractice claims are not assignable.5 Comeau, conversely, claims that the state of the law in Massachusetts with regard to assignment of malpractice actions is unsettled, and that there is currently no prohibition against her assertion of the Comerfords' claims.
Comeau is correct that the Massachusetts appellate courts have not decided the issue of when or if a legal malpractice claims is assignable, but that does not foreclose consideration of that issue here.6 This Court is of the opinion that the assignment executed between the Comerfords and Comeau is void as a matter of public policy, and that Comeau is therefore precluded from pursuing the Comerfords' claims against Alves.
The Comerfords delivered to Comeau an absolute assignment of their right to pursue malpractice claims against Alves. This Court is not prepared to say that there are no circumstances under which a legal malpractice claim can be assigned, see Thornton v. Kaye, Fialkow, Richmond & Rothstein, 7 MASS. L. RPTR. 419, Lawyers Weekly No. 12-214-97 (); however the type of assignment at issue in this case, the wholesale delegation of a personal cause of action based on the breach of a fiduciary responsibility, is the type that has been found historically to be invalid. The rationale for prohibiting assignment of legal malpractice claims is found in the highly personal and confidential relationship shared by an attorney and client. In Goodley v. Wank & Wank, Inc., 62 Cal.App.3d 389 (1976), the leading case on the nonassignability of legal malpractice claims, the court stated...
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