Simmons v. Halstrom Law Offices, P.C.
| Citation | 173 N.E.3d 59 (Table),100 Mass.App.Ct. 1106 |
| Decision Date | 25 August 2021 |
| Docket Number | 20-P-576 |
| Parties | William F. SIMMONS, Sr., & another v. HALSTROM LAW OFFICES, P.C., & another (and a companion case). |
| Court | Appeals Court of Massachusetts |
In these consolidated appeals, William F. Simmons, Sr., and Mary Fe Simmons (collectively, the Simmonses) appeal from (1) the dismissal on summary judgment in Suffolk Superior Court of their breach of contract and G. L. c. 93A claims against Halstrom Law Offices, P.C. (HLO), and (2) the dismissal of their c. 93A claim against HLO and Frederic Halstrom in the Middlesex Superior Court. We affirm in part and vacate and remand in part.
Background. We summarize the facts in the light most favorable to the Simmonses as the nonmoving parties, reserving some details for later discussion. See Surabian Realty Co. v. NGM Ins. Co., 462 Mass. 715, 718 (2012). In 2009, the Simmonses entered into an oral contract with attorney Mary Jane McKenna to represent them in a medical malpractice and wrongful death claim after the stillbirth of their son. At that time, attorney McKenna was not employed by HLO. However, attorney McKenna subsequently became employed by HLO, and, on December 4, 2009, sent the Simmonses a written contingent fee agreement (CFA) to sign. This CFA was between HLO and the Simmonses and was signed by McKenna on behalf of HLO. The CFA provided in pertinent part:
The Simmonses executed the CFA.
In August 2011, HLO (on the Simmonses’ behalf) filed a medical malpractice complaint in the United States District Court for the District of Massachusetts (medical malpractice suit). The medical malpractice suit was actively litigated thereafter, and was set for trial on March 10, 2014.
Approximately a month before the scheduled trial date, HLO sent a letter to the Simmonses stating that (1) HLO had already lent the Simmonses $30,000 in case costs, (2) the firm could not lend any further amounts, and (3) $25,000 would be needed to pay in advance two experts needed for trial. HLO demanded immediate payment of the $25,000 required to bring the experts to testify at trial. After the Simmonses did not agree to pay the amounts demanded, HLO moved to withdraw as counsel.5 The Simmonses were represented by counsel on a limited basis at the hearing on the motion to withdraw, but they pressed no argument against allowing the motion. By contrast, the motion was opposed by the medical malpractice defendants on the ground that withdrawal so close to the scheduled trial date would prejudice them. After hearing from Halstrom in camera, the Federal District Court judge allowed the motion and postponed the trial date. The Federal judge's ruling explained:
The Simmonses contend that they were unable to find successor counsel for the medical practice suit, which was later dismissed for lack of prosecution. The Simmonses did not appeal.
More than one year after the ruling on the motion to withdraw, Halstrom, as assignee of HLO, filed a breach of contract action in Suffolk Superior Court against the Simmonses, seeking reimbursement of amounts supposedly advanced by HLO in the medical malpractice suit. The Simmonses asserted counterclaims for negligence and corporate disregard against Halstrom. They also asserted third-party claims against HLO for breach of contract, violation of c. 93A, and corporate disregard. Halstrom's claim was dismissed on the ground that the assignment by HLO to him was invalid because HLO had failed to obtain the Simmonses’ consent prior to making the assignment. The judge concluded that the defect in the assignment deprived Halstrom of standing to pursue the debt. With similar reasoning, the judge dismissed the Simmonses’ counterclaims against Halstrom individually.6
The Simmonses then filed their first amended complaint [FAC] restating their third-party claims against HLO, and adding a claim against HLO's insurer.7 As to the FAC's claims, the Superior Court judge divided discovery into phases: the first phase was confined to the breach of contract claim against HLO, the second to the c. 93A claim against HLO, and the third to the claims against the insurer. The claims against the insurer were stayed.8 After each of the first two phases of discovery, HLO moved for summary judgment.
As to the first summary judgment motion, HLO argued that the elements of a contract claim could not be established and, in the alternative, that the Simmonses could not prove any damages. The Simmonses opposed the motion on the ground that the CFA was an "amendment" to an earlier oral contract that was created when attorney McKenna "speaking for HLO" told them that HLO would "take care of all the costs and any expenses will be paid back only from the future settlement."9 They argued that their breach of contract claim was based on the earlier, oral agreement, not the CFA, and that -- in any event -- the CFA should be subject to close scrutiny and was void as a matter of law because its terms were not adequately explained by HLO before the Simmonses signed it. As to damages, the Simmonses argued that they were entitled to damages of the following types: (1) the costs and expenses associated with defending against the Suffolk Superior Court suit, (2) the value of the lost potential recovery in the Federal medical malpractice suit, and (3) "other physical and mental pain, anguish and suffering during this period." Alternatively, the Simmonses argued that HLO's motion for summary judgment should be denied because it was filed late or pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), because further discovery was required.
HLO's summary judgment motion on the Simmonses’ contract claim was allowed on the ground that the plaintiffs could not prove an essential element of their breach of contract claim: that they had suffered compensable damages. Specifically, the motion judge ruled that the "American rule" precluded recovery of fees and costs incurred in defending against Halstrom's contract claim in the Superior Court suit. The judge also concluded that, without an expert, the Simmonses were unable to establish the value of the medical malpractice suit. Finally, the judge concluded that the Simmonses were not entitled to emotional distress damages on their contract claim.
Thereafter, as noted above, HLO moved for summary judgment on the Simmonses’ c. 93A claim. Among other things, HLO argued that, having been allowed by a Federal judge, HLO's withdrawal from the medical malpractice suit could not be an unfair or deceptive act under c. 93A. HLO also argued that the Simmonses’ c. 93A demand letter did not identify the law firm's collection practices as a basis for their claim, nor did it assert emotional distress damages and, in the alternative, even if it did, they could not make out the claim. In addition, they argued that the c. 93A claim was essentially duplicative of the already-dismissed contract claim, and that the Simmonses’ own actions (i.e, failure to pay for the trial experts, despite their ability to do so) was the proximate cause of their damages.
On the same day that HLO served its second summary judgment motion, the Simmonses sent a new c. 93A demand letter, expanding the alleged bases for the claim to include violation of the G. L. c. 93, § 49, the Massachusetts Debt Collection Act. But the Simmonses then opposed the motion for summary judgment only on the following grounds: first, the motion was filed without adhering to the pre-filing conference requirement of Rule 9C of the Rules of the Superior Court; and second, the motion should be denied pursuant to rule 56 (f) because further discovery was necessary. For strategic reasons, the Simmonses did not initially oppose the motion on the merits.10
On March 20, 2019, the Simmonses filed a motion for leave to again amend the c. 93A claim against HLO. This amendment was designed to add the claims relating to the allegations added in their latest c. 93A demand letter. In particular, the Simmonses now claimed that HLO was acting as a debt collector and violated the Massachusetts Debt Collection Act and, as such, c. 93A as well. The docket does not reflect any formal action on the motion to amend. However, as we describe next, a fair reading of the judge's ruling on the second motion for summary judgment reflects that the judge considered the motion to be futile.
The second summary judgment motion was allowed on June 25, 2019, on the following grounds. First, the judge concluded that the Simmonses had not established damages for three reasons: (1) given their lack of expert evidence, they could not prove the value of the Federal medical malpractice claim; (2) any litigation costs incurred during phase 1 (prosecution of the contract claim against HLO) in the Suffolk Superior Court action did not arise from any action by HLO during the litigation;11 (3) there was no admissible evidence of emotional distress damages. In addition, the judge concluded...
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