Poly v. Moylan

• Decision Date: 11 July 1996
• Parties: George P. POLY & another 1 v. Michael T. MOYLAN & others. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 250

667 N.E.2d 250

423 Mass. 141

George P. POLY & another ¹ v. Michael T. MOYLAN & others. ²

Supreme Judicial Court of Massachusetts,

Essex.

Argued March 4, 1996.

Decided July 11, 1996.

Ronald I. Bell, Chelmsford (Scott A. Bell, with him), for plaintiffs.

Allen N. David, Boston (Harvey Weiner, with him), for Michael T. Moylan.

Laurence Field, Boston, for Thomas E. Cargill, Jr.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LYNCH, Justice.

This appeal arises in an action by George P. Poly (plaintiff) and Maureen S. Poly (plaintiff's wife) against the defendants because of their alleged improper handling of a prior action against the United States Air Force (USAF), the plaintiff's former wife, Janet C. Gillis, and her husband, Air Force Sergeant Earl J. Gillis. On appeal the plaintiff argues that: (1) the trial judge erred in allowing the defendants' motion for judgment notwithstanding the verdict; (2) the judge erred in ruling that the USAF would not have been liable in the underlying tort claim; (3) the judge's biased conduct violated the plaintiff's right to a fair and impartial trial; (4) he is entitled to a new trial because a newly discovered private reprimand by the Board of Bar Overseers confirms an employee relationship between Moylan and Cargill; and (5) the judge erroneously decided that the defendants had no liability under G.L. c. 93A (1994 ed.).

1. Procedural history. The plaintiff filed this action against his former lawyer, Michael T. Moylan, and Moylan's employer during part of the period at issue, Thomas E. Cargill, Jr., and Cargill Associates. The complaint alleged: (1) negligence and breach of contract; (2) misrepresentation and deceit; (3) unfair or deceptive acts or practices under G.L. c. 93A; and (4) the plaintiff's wife's claimed loss of consortium.

The case, except for the G.L. c. 93A count, was then tried before a jury, resulting in a verdict for the plaintiff. In response to special questions, the jury found that Moylan had been negligent, and had misrepresented material facts to the plaintiff, and that the plaintiff would have prevailed both against the Gillises and the USAF. The jury also found that Cargill did not have control over Moylan in regard to the plaintiff's case and that the plaintiff's wife suffered no loss of consortium. The judge found that neither defendant had committed any unfair or deceptive act, and therefore dismissed the G.L. c. 93A claim and awarded both defendants their costs.

He then allowed Moylan's motion for judgment notwithstanding the verdict on the malpractice count; reduced the damages from $10,000 to $295 on the misrepresentation and deceit count; and denied the plaintiffs' motion for a new trial on the G.L. c. 93A count. Another Superior Court judge denied the plaintiffs' motion for a new trial on the malpractice misrepresentation and deceit counts. The plaintiffs and Moylan cross appealed. We granted the plaintiffs' application for direct appellate review.

2. The underlying tort claims. We summarize the evidence in the light most favorable to the plaintiff. As a result of a divorce, Janet Gillis, the plaintiff's former wife, was awarded custody of their two sons with the plaintiff having visitation rights. In 1979, Sgt. Earl Gillis, her then husband, was reassigned from Pease Air Force base in New Hampshire to Ramstein Air Force Base in Germany. The USAF allowed Janet Gillis and the children to join Sgt. Gillis in Germany.

On April 9, 1979, the plaintiff had obtained an order in the Middlesex Probate Court prohibiting Janet Gillis from removing the children from their home in Lee, New Hampshire. On April 13, 1979, the plaintiff sought and obtained a temporary custody order. The plaintiff then went to Lee and Pease Air Force Base in an unsuccessful attempt to find Janet Gillis and the children. At Pease Air Force Base, the plaintiff presented a copy of the temporary custody order to a USAF officer in the Judge Advocate General's Corps. On April 18, 1979, the plaintiff provided the USAF with another copy of the custody order.

On October 31, 1979, the Probate Court awarded permanent custody of the boys to the plaintiff. In 1980, criminal arrest warrants for kidnapping were issued against the Gillises. The USAF was notified of these warrants.

In May, 1983, and May, 1985, the USAF approved Sgt. Gillis's request to extend his tour of duty in Germany. In July, 1987, after the Gillises returned with the children to the United States they were found guilty of kidnapping under G.L. c. 265, § 26A (1994 ed.), and fined $2,550. Janet Gillis was found in contempt of the October 31, 1979, judgment and fined $500.

While the Gillises were in Germany with the boys in middle to late 1984, the plaintiff engaged Moylan. In January, 1985, Moylan presented an administrative claim to the USAF under the Federal Tort Claims Act (FTCA). The USAF denied the claim, contending that all acts allegedly committed by its personnel took place in Germany and that the FTCA did not apply under the foreign country exception.

In July, 1985, Moylan filed a complaint against the Gillises and the USAF in the United States District Court. Despite the USAF's prior successful invocation of the FTCA's foreign country exception, Moylan did not draft the complaint to emphasize the actions of USAF personnel in the United States.

In January, 1986, the USAF moved to dismiss on the basis of the foreign country exception. Moylan did not discuss the motion to dismiss with the plaintiff, and unilaterally decided not to oppose it. The United States District Court dismissed the plaintiff's claims against the USAF, noting that no opposition had been submitted and that all of the actions by the United States that formed the basis of this complaint occurred in a foreign country.

Moylan had not served the complaint on the Gillises for over 120 days. As a result, the United States District Court ordered Moylan to show cause why service had not been made. At the show cause hearing, Moylan failed to recognize or to argue that Fed.R.Civ.P. 4(m) (1995) provides more than 120 days for service on defendants outside of the United States. The District Court dismissed the complaint against the Gillises on February 26, 1986. Subsequent to the dismissal, Moylan learned that service had been properly made, but did not move to vacate the dismissal.

In 1988, Moylan filed a second complaint against a USAF official and the Gillises, this time in the Superior Court, alleging intentional infliction of emotional distress and a violation of the Massachusetts Civil Rights Act (G.L. c. 12, § 11I [1994 ed.] ). ³ This second complaint was dismissed against the government (as substituted defendant) on the ground that the statute of limitations had expired.

Moylan failed to inform the plaintiff that his action in the United States District Court had been dismissed, and that the action in the Superior Court had also been dismissed against the government. He also failed to answer the plaintiff's questions, never sent documents relative to the status of the case, and avoided the plaintiff's calls. The plaintiff did not learn about the two dismissals until 1991. Moylan also failed to inform the plaintiff that he had decided to stop using an investigator in the case.

After the plaintiff sued Moylan in July, 1991, Moylan moved to withdraw from the case against the Gillises in the Superior Court. This motion was allowed in March, 1992. Moylan conducted no discovery in either case. The Superior Court case was finally dismissed by November, 1993.

3. Count I: legal malpractice. In view of the allowance of Moylan's motion for judgment notwithstanding the verdict, we inquire whether, on any reasonable view of the evidence, there is a combination of facts from which a rational inference may be drawn in the plaintiff's favor. Sullivan v. Brookline, 416 Mass. 825, 826, 626 N.E.2d 870 (1994), and cases cited.

In a legal malpractice action a plaintiff who alleges his attorney was negligent in the prosecution of a claim will prevail if he proves that he probably would have obtained a better result had the attorney exercised adequate skill and care. Fishman v. Brooks, 396 Mass. 643, 647, 487 N.E.2d 1377 (1986). "[F]ormer clients suffer a loss due to an attorney's negligence only if that negligence is shown to have made a difference to the client." Jernigan v. Giard, 398 Mass. 721, 723, 500 N.E.2d 806 (1986).

(a) The case against the USAF and the discretionary function exception. The defendants argue that the case against the USAF could not have been won because the claim was barred by: (1) the discretionary function exception to the FTCA; (2) the foreign country exception to the FTCA; (3) the fact that Moylan was not retained until the statute of limitations had run; and (4) insufficient evidence of intent. We agree with the defendants that the claim was barred by the discretionary function exception to the FTCA. We do not reach the other arguments.

The discretionary function exception of the FTCA prohibits recovery where the alleged tort is "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a) (1994).

Whether conduct falls under the discretionary function exception is a question of law. See Hart v. United States, 894 F.2d 1539, 1544 (11th Cir.), cert. denied, 498 U.S. 980, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990); Garcia v. United States, 826 F.2d 806, 809 (9th Cir.1987). ⁴ The United States Supreme Court has provided a two-step test for applying the discretionary function exception. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). ⁵ The court must first determine whether the governmental actor had discretion to decide which course to follow and, if so, whether...