Locicero v. Leslie, Civil Action No. 96-11224-WGY.

• Decision Date: 14 November 1996
• Docket Number: Civil Action No. 96-11224-WGY.
• Citation: 948 F.Supp. 10
• Parties: Vincent R. LOCICERO, Plaintiff, v. John K. LESLIE, Thomas M. Kiley, John Sandelli, Defendants.
• Court: U.S. District Court — District of Massachusetts

948 F.Supp. 10

Vincent R. LOCICERO, Plaintiff, v. John K. LESLIE, Thomas M. Kiley, John Sandelli, Defendants.

Civil Action No. 96-11224-WGY.

United States District Court, D. Massachusetts.

November 14, 1996.

Vincent R. LoCicero, Sarasota, FL, for Plaintiff.

John K. Leslie, Chelmsford, MA, Pro Se.

Thomas I. Elkind, Epstein, Becker & Green, P.C., Boston, MA, John C. Sandelli, Dracut, MA, for Defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.

Vincent R. LoCicero ("LoCicero") commenced this action against John K. Leslie ("Leslie"), Thomas M. Kiley ("Kiley") and John Sandelli ("Sandelli") (collectively "the Defendants") on June 12, 1996 alleging breach of fiduciary duty (Count I), attorney malpractice (Count II), unfair trade practices under chapter 93A (Count III) and negligent infliction of emotional distress (Count IV). The allegations stem from the Defendants' representation of LoCicero in various matters following his wife's incapacitation. Kiley and Sandelli filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). This Court heard arguments on the motions to dismiss on October 10, 1996. During the hearing, this Court granted the motion to withdraw filed by LoCicero's counsel and gave LoCicero 30 days in which to amend his Complaint. Having failed to amend within the 30 day period, this Court considers the merits of the motions to dismiss.

I. STATEMENT OF CASE

LoCicero's wife suffered a massive intercerebral hemorrhage which caused the herniation of her brain stem. After his wife's incapacitation, the probate court appointed LoCicero conservator for her. Sandelli represented LoCicero in the probate court proceedings. LoCicero, individually and in his capacity as conservator, instituted a medical malpractice action ("the state court action") to recover for his wife's injuries. Leslie initially represented LoCicero in the state court action and Kiley eventually took over the representation. LoCicero recovered seven million dollars in the state court action — six million dollars in his capacity as conservator and one million dollars in his individual capacity.

At a settlement hearing before Judge Izzo of the Middlesex Superior Court on November 18, 1988, the following colloquy occurred between the judge and LoCicero:

The Court: Okay. And you're going to hold that money for her benefit; is that correct?

The Witness: That's right, your Honor.

The Court: And as conservator, you understand you must report that amount in an accounting to the Probate Court; do you understand that?

The Witness: Yes, your Honor.

The Court: And make annual accounts on that money.

You are getting, yourself, four hundred thousand dollars, less attorney's fees, et cetera, two hundred ninety thousand dollars going to you is your money to do as you wish. You understand that?

The Witness: Yes, your Honor.

Transcript, November 18, 1988, Settlement Hearing, C.A. No. 85-4480, Middlesex Superior Court (attached to Affidavit of Thomas M. Kiley).

LoCicero alleges that the Defendants never notified him of his duty to file an accounting with the probate court and, therefore, he did not file any accountings after the settlement of the state court action.¹ LoCicero states that on June 24, 1993, the daughter of his incapacitated wife, Joanne Carlo ("Carlo"), filed a petition in the probate court to require LoCicero to file an accounting. On June 30, 1993, Carlo filed a petition to remove LoCicero as conservator and appoint herself as successor. On August 17, 1993 Carlo filed petitions for contempt against LoCicero for his failure to file an accounting.

LoCicero states that he has accumulated $70,000 in legal fees and suffered severe emotional distress as a result of defending Carlo's allegations. LoCicero states that he failed to file the required accountings because the Defendants never informed him of his duty to do so. LoCicero seeks damages for the injuries he has suffered as a result of the Defendants' actions.

II. DISCUSSION

Kiley filed a motion to dismiss or in the alternative for summary judgment to which he attached the above quoted transcript from the settlement hearing. Kiley argues that LoCicero's action is time-barred and also that each claim fails on its merits. Leslie's motion to dismiss states that the Amended Complaint is time-barred. In opposition, LoCicero argues that this Court should not convert a motion to dismiss to a motion for summary judgment and that, therefore, this Court should ignore the transcript of the settlement hearing in ruling on the motions to dismiss.

Despite the parties' arguments, it is not necessary for this Court to convert the motion to dismiss to a motion for summary judgment. This Court may take judicial notice of the transcript as a public record and may rely on that record in determining these motions to dismiss under rule 12(b)(6). See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (stating that court may, in deciding motion under Fed.R.Civ.P. 12(b)(6), consider official public records); Branch v. FDIC, 825 F.Supp. 384, 398 n. 8 (D.Mass.1993) (Young, D.J.) (stating "it is well established that a district court may take judicial notice of public records or indisputably authentic documents on a 12(b) motion without converting even...