Frullo v. Landenberger

• Decision Date: 13 September 2004
• Docket Number: No. 03-P-342.,03-P-342.
• Citation: 61 Mass. App. Ct. 814,814 NE 2d 1105
• Parties: RAYMOND L. FRULLO, JR., & another vs. F. BRADLEY LANDENBERGER.
• Court: Appeals Court of Massachusetts

61 Mass. App. Ct. 814

814 NE 2d 1105

RAYMOND L. FRULLO, JR., & another¹ vs. F. BRADLEY LANDENBERGER.

No. 03-P-342.

Appeals Court of Massachusetts, Barnstable.

March 1, 2004.

September 13, 2004.

Present: ARMSTRONG, C.J., COWIN, & MCHUGH, JJ.

Saul L. Benowitz for the plaintiffs.

Stephen J. Duggan for the defendant.

COWIN, J.

The plaintiffs, former clients of the defendant, an attorney, brought suit against him alleging negligence, breach of contract, and violations of G. L. c. 93A, § 11, arising from his representation of them during the course of earlier litigation. In allowing the defendant's motion for summary judgment, a judge of the Superior Court determined that evidence that the defendant's negligence caused loss to the plaintiffs was insufficient to warrant a finding in their favor. He concluded also that the plaintiffs' claim under G. L. c. 93A was a consumer, rather than a business, claim, and therefore could not be pursued under G. L. c. 93A, § 11.² The plaintiffs appealed. We agree that the plaintiffs' evidence was insufficient with respect to the claim asserting negligence. Unlike the motion judge, we believe that the evidence does justify a proceeding under G. L. c. 93A, § 11. However, the insufficiency of the evidence regarding causation of loss is fatal to the c. 93A claim as well. Accordingly, we affirm the judgment.

1. Material facts and prior proceedings. The evidence, accepted and construed in the light most favorable to the plaintiffs, is as follows. The plaintiffs were the principals of Telstar Telecommunications, Inc. (Telstar), a marketer of cellular telephone services. Telstar entered into an agreement with Steele Hill Development, Inc., and Summit at Four Seasons (collectively, Steele Hill) regarding the provision of cellular telephone services to Steele Hill's prospective time-share purchasers in New Hampshire. It is unnecessary to detail the parties' disagreements arising in connection with the business relationship, other than to say that Telstar's expenditure of time and money did not generate expected revenues; Telstar accused Steele Hill of first concealing the fact that the cellular telephone promotion contemplated by the agreement had been declared unlawful in New Hampshire, and then reneging on a modified agreement; and Telstar was forced into bankruptcy. Telstar's claims against Steele Hill were subsequently sold by the bankruptcy trustee to the plaintiff Wayne G. Favier, who in turn conveyed an interest in the claims to the plaintiff, Raymond L. Frullo, Jr.³

Thereafter, the plaintiffs retained the defendant to assert the Telstar claims against Steele Hill, and a contingent fee agreement among them was executed. The defendant represented to the plaintiffs that he had extensive litigation experience, although in fact he had no courtroom experience at that time. The defendant forwarded to Steele Hill written demands for relief under G. L. c. 93A and the New Hampshire consumer protection statute,⁴ and then filed in the Superior Court a complaint alleging essentially a breach of the Telstar contract by Steele Hill. The complaint did not assert a claim under G. L. c. 93A. After the case had been pending for a number of months, the plaintiffs became aware that their complaint did not include a c. 93A claim, and that certain discovery, particularly of documents, that they considered significant had not been conducted.

The plaintiffs made a number of requests that the defendant correct these deficiencies. Although the defendant promised to obtain the documents in question, he did not do so. Instead, approximately one and one-half years into the case, he filed a motion to withdraw as counsel, which the plaintiffs opposed. The motion was denied without prejudice. When the plaintiffs again demanded that the complaint be amended to include a claim under c. 93A, the defendant drafted a motion to amend, served it pursuant to Superior Court Rule 9A, and refiled his motion to withdraw as counsel. Despite the plaintiffs' renewed opposition, the motion to withdraw on this occasion was allowed, "subject only to the filing of motions presently circulating under Rule 9A." Despite the condition imposed by the court, the defendant did not file the motion to amend.

The plaintiffs retained successor counsel, paying them more than $5,000 to complete discovery. However, by this time, the requested documents no longer existed. Successor counsel also filed a motion to amend the complaint to assert a claim under G. L. c. 93A, § 11, but that motion was denied, apparently because of the failure of prior counsel to file such a motion despite numerous opportunities to do so.⁵ The case went to trial on the breach of contract claim, resulting in a jury verdict in favor of Steele Hill.

The plaintiffs then filed a pro se complaint asserting negligence and breach of contract with respect to the defendant's failure to conduct discovery and to plead a c. 93A claim in the underlying action. Alleging that they were "persons who engaged in the conduct of a trade or commerce," the plaintiffs also asserted a claim against the defendant under G. L. c. 93A, § 11. In response to the defendant's motion for summary judgment, the plaintiffs filed an expert witness affidavit of attorney Valeriano Diviacchi expressing the view that the defendant had breached the applicable standard of care in various respects. The plaintiffs' timely appeal from the summary judgment granted in favor of the defendant brings the case here.

2. The negligence claim. Negligence claims against attorneys do not differ from negligence claims generally in that plaintiffs must demonstrate both that the defendant failed to adhere to an applicable standard of care, and that the failure proximately caused the plaintiffs' losses. See Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987) (Colucci). "Expert testimony is generally necessary to establish that the attorney failed to meet the standard of care owed by an attorney in a particular case." Pongonis v. Saab, 396 Mass. 1005, 1005 (1985). Such testimony may not be required where the malpractice is so obvious that a lay person can recognize it without expert assistance, or where the attorney disobeys the lawful instructions of his client. Ibid.

Here, the evidence was sufficient to avoid summary judgment on the proposition that the defendant breached his duty to the plaintiffs. That there was evidence that he violated his clients' instructions to assert a c. 93A claim and to conduct certain discovery appears sufficient by itself to support a finding on the subject. Apart from that, the expert's affidavit adequately asserts that, if the facts provided by the plaintiffs are true, the defendant breached the standard of care by misrepresenting his experience, failing to conduct discovery (particularly when he had promised to do so), and failing to file a timely motion for leave to amend the complaint to assert a c. 93A claim after committing to the clients that it would be done.

The question then is whether the evidence warranted a finding that the defendant's negligence caused loss to the plaintiffs. "A client in a malpractice action based on an allegation of attorney negligence must show that, but for the attorney's failure, the client probably would have been successful in the prosecution of the litigation giving rise to the malpractice claim." Colucci, 25 Mass. App. Ct. at 113. This is what brings about the "trial within a trial," see Fishman v. Brooks, 396 Mass. 643, 647 (1986), wherein the fact finder determines what the result of the underlying case would probably have been had the attorney not been negligent. See Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 225 (1999). It is essentially an effort to decide the causation element of the negligence case and, if causation is established, the extent of damages. Depending on the subject matter, expert testimony may be necessary. Id. at 226. See Colucci, supra at 113, 115. In certain circumstances, expert testimony is not required. See Fishman v. Brooks, supra.

In the present case, we believe that expert testimony was necessary in order to enable the jury to make a judgment, not normally within the experience of lay persons, regarding the effect of the defendant's negligence on the plaintiffs' prospects in the underlying case. The plaintiffs argue that if there is no need for expert testimony to make out the underlying case in the first place, then there is no need for expert testimony to make a case of causation of loss by reason of attorney malpractice with respect to that underlying case. They rely on Fishman v. Brooks, supra, where it was determined that expert testimony was not required to prove causation when the underlying case involved questions of negligence and comparative negligence arising from a motor vehicle accident.

While virtuous because of its simplicity, the plaintiffs' theory ignores the difference between proving the elements of a particular cause of action and proving that attorney negligence has in some fashion affected the ability to prove such elements. We have considerable difficulty in seeing how the jury, without expert assistance, would determine the significance of the absence of discovery, or the probable success of a c. 93A claim, in litigation arising out of the Telstar-Steele Hill business dispute. Unlike automobile accidents, these are not matters that lay persons regularly encounter. We view the present case as closer to Colucci, 25 Mass. App. Ct. at 113-114 (expert testimony necessary to show likelihood that order restraining picketing could have been obtained); Girardi v. Gabriel, 38 Mass. App. Ct. 553, 557-560 (1995) (experts' testimony inadequate to show that improper execution of a will damaged plaintiffs); and Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. at 225-228 (expert engineering testimony required to show that, but for attorney's...