Neuwirth v. Neuwirth

• Decision Date: 01 May 2014
• Docket Number: No. 13–P–775.,13–P–775.
• Citation: 8 N.E.3d 757,85 Mass.App.Ct. 248
• Court: Appeals Court of Massachusetts
• Parties: Laurisa C. NEUWIRTH v. Donald NEUWIRTH.

85 Mass.App.Ct. 248

8 N.E.3d 757

Laurisa C. NEUWIRTH¹

v.Donald NEUWIRTH.

No. 13–P–775.

Appeals Court of Massachusetts,

Middlesex.

Argued Jan. 7, 2014.

Decided May 1, 2014.

Peter H. Rosenthal, Boston, for Donald Neuwirth.

Lisa Smyth (Brad W. Greenberg with her), Brookline, for Smyth Law Offices, P.C.

Present: KATZMANN, FECTEAU, & MILKEY, JJ.

MILKEY, J.

This case involves the efforts of the Smyth Law Offices, P.C. (Smyth Law), to collect fees allegedly owed by its former client, Donald Neuwirth (Neuwirth). Rather than filing a new claim against Neuwirth based on contract or quantum meruit, Smyth Law chose to pursue an attorney's lien in the divorce action in which it had represented him. After a Probate and Family Court judge determined the amount of such a lien and entered a supplemental judgment of divorce nisi incorporating it, Neuwirth appealed. A few months later, the same judge dismissed that appeal based on Neuwirth's tardiness in ordering that a transcript be made of the relevant court hearing. Before us now is Neuwirth's appeal of the order dismissing his underlying appeal. For the reasons set forth below, we reverse and remand.

1. Background. a. The divorce action. On May 5, 2009, Neuwirth's wife filed a complaint for divorce. The same judge who determined the amount of the lien (and who issued all other relevant rulings in the matter before us) characterized the divorce action as

“long and protracted and [one that] involved many issues, including property division involving numerous parcels of real estate as well as issues of domestic violence that involved a full evidentiary hearing on a restraining order requested by [the wife].”

Attorney Lisa Smyth of Smyth Law represented Neuwirth in that action until the judge allowed her motion to withdraw on July 13, 2011. Shortly thereafter, Neuwirth and his wife settled the divorce action, and a judgment of divorce nisi, incorporating their separation agreement, entered on November 29, 2011.

b. Smyth Law's lien. Meanwhile, on September 9, 2011, Smyth Law filed a motion to establish an attorney's lien pursuant to G.L. c. 221, § 50, and later that month filed an amended version of that motion. The judge held a hearing of uncertain nature on or about January 10, 2012, at which Neuwirth represented himself. Although the transcript of that hearing is not before us, the record suggests that Neuwirth was contesting both the amount owed and the process that the judge used to assess Smyth Law's claim to the fees. In any event, the judge allowed Smyth Law's motion, ruling as follows:

“A lien is established in the amount of $41,000—as set forth in the affidavit filed by Lisa Smyth dated November 15, 2011, the Court finds that based on the facts of the case as well as the experienceof Atty Smyth and [her associate] that the fees are fair [and] reasonable.”

The judge issued a “supplemental judgment of divorce nisi” (dated February 1, 2012, and docketed February 9, 2012) that stated that the $41,000 attorney's lien “shall be incorporated” into the judgment.

c. Neuwirth's underlying appeal. Acting pro se, Neuwirth filed a notice of appeal from the supplemental judgment of divorce nisi on February 27, 2012. That same day, he ordered the electronic recording of the relevant court hearing (apparently the January 10, 2012, hearing). It is uncontested that Neuwirth received a copy of that recording—in the form of a compact disc (CD)—on March 12, 2012. Neuwirth, still acting pro se, sent Smyth Law a letter dated March 20, 2012, identifying Julianne Deveau as the person that he “will hire” to transcribe the court hearing for the appeal. The letter requested that Smyth Law inform Neuwirth “within 20 days of any objections that you may have,” and it closed with the statement by Neuwirth that “[t]o the best of my understanding I have conformed to the rules of Appellate Procedure 8b.”

d. Smyth Law's further collection efforts. At that point, Neuwirth's appeal sat dormant while the parties' attention turned to Smyth Law's additional efforts to collect the $41,000. Notably, the actions that the parties took during this period indicate that they both believed that Neuwirth's obligation to pay the $41,000 was not automatically stayed by the pending appeal. ² For example, Smyth Law sought to have Neuwirth held in contempt for failing to pay the $41,000, while Neuwirth filed a motion requesting that the judge stay the judgment pending appeal. The judge denied Neuwirth's motion for a stay and issued the contempt judgment that Smyth Law requested. Following various twists and turns in the contempt process, Smyth Law obtained from the court a general execution against Neuwirth's “goods, chattels or lands.” Smyth Law then levied the execution against investment property that Neuwirth owned in the Brighton section of Boston,³ and a sheriff's sale of that property was scheduled for September 14, 2012.

Facing the scheduled sale of his property, Neuwirth hired counsel who filed a motion to “recall the Execution ... [and] vacate the Amended Judgment upon which it was issued.” Neuwirth argued, inter alia, that an attorney's lien was improper because the property at issue was not the product of a “judgment ... in his ... favor” in the divorce proceeding or “the proceeds derived therefrom.” G.L. c. 221, § 50, as appearing in St.1945, c. 397, § 1. See Curly Customs, Inc. v. Pioneer Financial, 62 Mass.App.Ct. 92, 97, 814 N.E.2d 1176 (2004) (attorney's “lien exists only on proceeds obtained by the client in the underlying proceeding; consequently, if there are no such proceeds, there is no lien”). The judge rejected that argument, reasoning that Neuwirth's “retention of the [investment] property as part of the divorce settlement constitutes an award within the meaning of the cases because it extinguished any rights which the wife may have had in the property pursuant to G.L. c. 208, [§] 34, conferring the full financial benefit on the Husband.” ⁴

In his motion, Neuwirth also argued that an execution was improper while the underlying appeal remained pending. See G.L. c. 235, § 16, as appearing in St.1975, c. 377, § 117 “[n]o execution shall issue upon a judgment until the exhaustion of all possible appellate review thereof”). Following a hearing on September 10, 2012, the judge agreed with that argument and therefore “recalled” the execution on September 12, 2012, two days before the scheduled sheriff's sale.

e. Smyth's motion to dismiss. As discussed further infra, Neuwirth's new counsel made a representation at the September 10, 2012, hearing about the transcript being delayed. Directly after that hearing, Lisa Smyth took the initiative to contact Deveau to follow up on the alleged delay. She learned that Neuwirth had not formally hired Deveau and had not even contacted Deveau since March. She passed this information along to Neuwirth's counsel to let him know that—in her words—his “client seems to have a real problem.” Whether prompted by that communication or not, Neuwirth reconnected with Deveau by electronic mail message (e-mail) that very evening (as Lisa Smyth learned from Deveau the following day). After some back and forth e-mail exchanges between them, Neuwirth formally engaged Deveau to prepare the transcript.

In the interim, on September 12, 2012—the day the execution was recalled and the day after Lisa Smyth learned that Neuwirth had reconnected with Deveau—Smyth Law filed a motion to dismiss the pending appeal pursuant to Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994). Pursuant to a short order of notice, the motion to dismiss was marked up for hearing on September 19, 2012.

f. Neuwirth's defense. Neuwirth submitted an affidavit in opposition to the motion to dismiss. In an effort to excuse his delay, Neuwirth stated that he had had numerous conversations with John Barrett, who was employed in the appeals unit of the register's office of the Probate and Family Court, regarding the production of the transcript. According to Neuwirth, he understood Barrett to say that while the transcriber had to be identified within fifteen days after Neuwirth received the CD, there was no specific deadline for the production of the transcript. Neuwirth further claimed that he did not believe a delay in the completion of the transcript would hold up the appeal, and that, in any event, he had no reason to want to delay the appeal. In this regard, Neuwirth—who had failed in his attempt to have the judgment formally stayed pending appeal—emphasized that Smyth Law was threatening to sell his property as soon as it obtained an execution.

Neuwirth also stated in his affidavit that he unsuccessfully had tried to reach Deveau on numerous occasions since March, 2012, but was unable to do so because of problems with her telephone.⁵ Finally, Neuwirth's affidavit also informed the court that by September 18, 2012, he had—by United States mail—sent the CD to Deveau to be transcribed.

The following day, the judge held a nonevidentiary hearing, and thereafter summarily dismissed Neuwirth's pending appeal. Ten days later, Neuwirth filed a motion to vacate that dismissal (supported by two new affidavits),⁶ and he requested findings. Smyth Law opposed the motion but joined with Neuwirth in requesting that the judge issue findings to support her ruling. See Mass.R.A.P. 10(c) (authorizing trial court judge to allow motion to dismiss “only upon a finding of inexcusable neglect”). On December 10, 2012, the judge reaffirmed her earlier ruling, and she issued a written decision that incorporated, almost verbatim, findings and rulings that Smyth Law had proposed. For reasons discussed further below, the judge concluded that Neuwirth's explanation of his tardiness did not amount to “excusable neglect.” She also concluded that Neuwirth had not cured his noncompliance by the date of the hearing on the motion to dismiss. Finally, the judge reiterated her view that Neuwirth had no reasonable likelihood of...