Tedeschi-Freij v. Percy Law Grp., P.C.

• Decision Date: 17 June 2021
• Docket Number: No. 20-P-825,20-P-825
• Parties: Suzanne G. TEDESCHI-FREIJ v. PERCY LAW GROUP, P.C., & another.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 772

172 N.E.3d 774

Suzanne G. TEDESCHI-FREIJ

v.PERCY LAW GROUP, P.C.,¹ & another.²

No. 20-P-825

Appeals Court of Massachusetts, Bristol.

Argued April 7, 2021.

Decided June 17, 2021.

Lisa S. Carlson, Lakeville, for the plaintiff.

Kathleen A. Federico, Boston, for the defendants.

Present: Blake, Hanlon, & Shin, JJ.

BLAKE, J.

This is an action arising out of a former business relationship between the plaintiff, Suzanne G. Tedeschi-Freij (Tedeschi), and the defendants, Percy Law Group, P.C., and Thomas Percy (collectively, Percy or defendants). Tedeschi, an attorney, alleged that Percy used her name, without her consent, in violation of G. L. c. 214, § 3A, was unjustly enriched by the use of Tedeschi's name, and in so doing, violated G. L. c. 93A (93A claim). She also sought a declaration that Percy misrepresented Tedeschi as his law partner and used her name without authority for his own financial gain. A judge of the Superior Court allowed Percy's motion for summary judgment, finding that Tedeschi was unable to quantify her damages for the unauthorized use of name and unjust enrichment claims. As to the 93A claim, the judge found that the statute did not apply to an employer-employee relationship, and that Tedeschi was unable to quantify her damages. Thereafter, a judgment of dismissal entered on all claims. This appeal followed. We affirm in part and reverse in part.

Background. We recite the facts in the light most favorable to Tedeschi, a licensed attorney, who joined the law firm of Percy & Teixeira, P.C., in 2000. The firm announcement named Tedeschi as a partner, as did a story that appeared in a local newspaper. During the summer of 2001, in a meeting with Tedeschi and others, Percy raised the issue of making Tedeschi a partner in the firm. Ultimately the name of the firm was changed to Percy, Teixeira & Tedeschi, P.C.³ However, at Percy's request, specifics of the partnership were not discussed at that time. Tedeschi's subsequent efforts to discuss a partnership agreement with Percy proved fruitless. After Attorney Elizabeth Teixeira left the firm in 2005, Percy changed the name of the firm to Percy, Tedeschi & Associates, P.C.⁴

Percy referred to Tedeschi as his partner; Tedeschi received a significant increase in her compensation at that time. Tedeschi brought many clients and businesses to the firm; she received referrals from her former law firm and her family's real estate business (Tedeschi Realty Center), among others. Tedeschi believed that Percy benefited from her name being included in the firm's name.⁵

In 2007, Attorney Edwin Kilcline was hired by Percy and discussions about a partnership among the trio ensued. When Kilcline joined the firm, the firm's name was changed to Percy, Tedeschi & Kilcline, P.C. Once again, Percy resisted negotiating a partnership agreement with Tedeschi and Kilcline. Kilcline left the firm shortly thereafter and the firm name reverted to Percy, Tedeschi & Associates, P.C.

Tedeschi continued her efforts to discuss an equity position with Percy, but Percy said it would be discussed in the future. Notwithstanding, Tedeschi continued to practice law at the firm. Tedeschi believed that her work, along with her name as part of the firm, financially benefited Percy.

In July 2009, Tedeschi changed her status at the firm to "of counsel." On August 27, 2012, Tedeschi decided to open her own practice and to separate from Percy. She e-mailed Percy to tender her resignation and asked that her name be removed from the firm as soon as possible. Percy acknowledged the e-mail and agreed to rename the firm within sixty days. On September 6, 2012, Percy changed the firm's name to Percy Law Group PC, with the Secretary of State's Office, but made no other changes; the firm's letterhead, website, and outside advertising continued to bear Tedeschi's name.

On December 3, 2012, Tedeschi was hired by the Bristol County District Attorney's office;⁶ shortly thereafter she sent an e-mail to Percy informing him of her new position and that, as a result, she was precluded from accepting any other employment. Percy did not remove the signage from the building bearing Tedeschi's name; in fact, he continued to advertise the firm as Percy, Tedeschi & Associates, P.C., until 2018. Tedeschi learned that potential clients called the firm looking to retain her, thereby suggesting that Percy benefited from Tedeschi's name and reputation.

On June 19, 2014, Tedeschi sent another e-mail to Percy requesting the immediate removal of her name from the sign on the building. Percy acknowledged that it had been "way too long" and indicated that he would "make the necessary arrangements soon." Tedeschi sent another e-mail to Percy on October 19, 2014, inquiring about the removal of her name from the sign. Percy replied that he was "in that process now."

In 2016, advertisements containing the firm name of Percy, Tedeschi & Associates, P.C., appeared in local real estate advertising books. Thereafter, Tedeschi filed a complaint with the Board of Bar Overseers (BBO) regarding the unauthorized use of her name; Percy was issued an admonition in January 2018. After the BBO complaint was filed, Percy changed the signage on the building, but the firm's Facebook page continued to show a photo identifying the firm as Percy, Tedeschi & Kilcline, P.C., as of 2018. Additionally, the firm was listed as Percy, Tedeschi & Associates, P.C., in the Internet yellow pages and as the registered agent on the Massachusetts corporations website until February 2018.

Discussion. 1. Standard of review. "We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law" (quotations and citations omitted). Dalrymple v. Winthrop, 97 Mass. App. Ct. 547, 552, 149 N.E.3d 820 (2020). "While a judge should view the evidence with an indulgence in the [nonmoving party's] favor ... the [nonmoving] party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment."

Green v. Zoning Bd. of Appeals of Southborough, 96 Mass. App. Ct. 126, 133, 133 N.E.3d 821 (2019), quoting LaLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989). Additionally, a "nonmoving party's failure to establish an essential element of her claim renders all other facts immaterial and mandates summary judgment in favor of the moving party" (quotation and citation omitted). Roman v. Trustees of Tufts College, 461 Mass. 707, 711, 964 N.E.2d 331 (2012).

2. Unauthorized use of name. Tedeschi alleged that Percy's continued use of her name violated G. L. c. 214, § 3A, which provides, in pertinent part, that "(a)ny person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent ... may recover damages for any injuries sustained by reason of such use." The statute, which was enacted in 1973,⁷ was first construed in Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d 847 (1980), where the court held that the interest protected "is the interest in not having the commercial value of one's name, portrait or picture appropriated to the benefit of another." Id. at 749, 400 N.E.2d 847. An appropriation is actionable under the statute if "the defendant use[d] the plaintiff's name, portrait or picture deliberately to exploit its value for advertising or trade purposes." Id. Since Tropeano, there has been a dearth of cases construing or applying the statute, and none that addressed the question presented here: whether Tedeschi must establish damages as an element of her claim to survive summary judgment.

Percy does not deny that Tedeschi's name was not removed from the firm's outdoor building signage for nearly six years. And, as the judge found, he continued to use Tedeschi's name in the firm's advertisement for years after she asked that her name be removed. The question is whether Tedeschi must prove quantifiable damages to maintain this cause of action. At the time of the summary judgment hearing, discovery was closed. On the issue of damages, in response to Percy's first request for interrogatories, Tedeschi asserted that the "firm income was enriched by the use of" her name, and that she "agree[d] to submit a full calculation [of her damages] in a timely manner." At her deposition, Tedeschi testified that, because her name was recognizable, and she worked hard, a financial benefit inured to Percy.

General Laws c. 214, § 3A, provides that a plaintiff "may recover damages for any injuries sustained by reason of such use [of her name]." And, upon a finding that a defendant knowingly used a plaintiff's name in violation of the statute, a judge has discretion to impose treble damages. See id. In reliance on this language, Percy asserts that damages are an essential element of Tedeschi's claim; that she failed to offer any actual evidence of damages (such as evidence that Percy financially benefited from the use of her name); and therefore the judgment should be affirmed.⁸ Tedeschi contends that she need not prove quantifiable damages at the summary judgment stage, but rather that nominal damages should be presumed and that her actual damages, including economic loss and emotional distress, are open for determination by the fact finder.

An examination of cases from other jurisdictions is useful. In a case involving the continued use of a deceased lawyer's name by his former law firm, the lawyer's widow filed a complaint against the firm in the circuit court in South Carolina asserting claims for infringement on the right of publicity, conversion, unjust enrichment, and quantum meruit. Gignilliat v. Gignilliat, Savitz & Bettis, L.L.P., 385 S.C. 452, 456, 684 S.E.2d 756 (2009). Although the court affirmed the grant of summary judgment in favor of the law firm on...