Tronic v. Jalkut
| Decision Date | 03 July 2000 |
| Docket Number | 991749 |
| Citation | 2000 MBAR 338 |
| Parties | Myles Tronic v. William D. Jalkut et al.1 |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Donohue, J.
This case arises out of allegations of legal malpractice against the defendants, William D. Jalkut ("Jalkut") Douglas Q. Meystre ("Meystre"), and the firm for which they work, Fletcher, Tilton & Whipple, P.C. ("the firm"). The plaintiff, Myles Tronic ("Tronic"), sued Jalkut, Meystre, and the firm after they represented him in another suit, based on his unfortunate slip and fall in his handicapped parking space at his apartment building in Westboro, Massachusetts. For the reasons that follow, the court ALLOWS the defendants' motion for summary judgment.
After a careful examination of the summary judgment record, the court finds the following facts undisputed:
On January 3, 1994, Tronic slipped and fell on ice in his handicapped parking space at his apartment building in Westboro, and sustained serious injuries. In February 1994 Tronic retained the defendants, Jalkut, Meystre, and the firm, to advise and represent him concerning any legal rights he might have arising out of this fall. Tronic discharged the defendants in September 1996.
After that discharge, on December 20, 1996, Tronic filed a pro se complaint in this court against the owners of his apartment building, Fountainhead Associates. See Tronic v. Fountainhead Associates, Civil No. 96-02742 (Worcester Super. Ct. 1996). Sometime after filing that action, Tronic retained another lawyer and firm, Chris Milne and the Milne Law Offices, to represent him in that case. On January 28, 1999 Tronic settled that action for $35,000 and signed a release covering any other rights arising out of the slip and fall. A stipulation of dismissal in case Number 96-02742 was filed with the Superior Court on February 3, 1999.
Summary judgment is appropriate where there are no material facts in dispute and when the moving party is entitled to judgment as a matter of law. See Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat. Bank v. Dawes, 369 Mass. 550, 553-55 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and of showing that it is entitled to judgment as a matter of law. See Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). When the party moving for summary judgment does not have the burden of proof at trial, that party may meet its burden by either submitting affirmative evidence that negates an essential element of the opponent's case or "by demonstrating that proof of an element is unlikely to be forthcoming at trial." Flesner v. Technical Commun. Corp., 410 Mass. 805, 809 (1991); see also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party demonstrates the absence of a trial issue, the party opposing the motion must respond with evidence of specific facts establishing the existence of a factual dispute. See Pederson, 404 Mass. at 17. At that point, the party opposing the motion may not continue to rely on the pleadings, if they are not verified, but must instead answer with affidavits, testimony from depositions, answers to interrogatories, or admissions in the file. Mass.R.Civ.P. 56(e); see also Kourouvacilis, 410 Mass. at 7 13-714, quoting Celolex v. Catrett, 477 U.S. 317, 323-24 (1986); LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
The defendants have now moved for summary judgment on all counts in the plaintiff's complaint. Read broadly, Tronic's pro se complaint alleges, variously, "malpractice, breach of fiduciary duty, negligence, intentional concealment, fraud or any other trespass that might apply." Even accepting, however, that Tronic may have some cause of action arising out of the defendant's representation before he settled the underlying suit against Fountainhead Associates, there remain two deficiencies visible in his complaint and discovery materials that are fatal to this case. First, Tronic has not brought forth facts, beyond bare assertions, alleging any additional damages beyond the injuries he suffered after his initial slip and fall. See McCann v. Davis, Malm & D'Agostine, 423 Mass. 558, 560 (1996); Fall River Savings Bank v. Callahan, 18 Mass.App.Ct. 76, 81-82 (1984), citing McLellan v. Fuller, 226 Mass. 374, 377-78 (1917). Second, Tronic has not brought forth facts, beyond those same bare assertions, sufficient to show that the defendants caused him any additional harm either during or subsequent to the termination of their relationship. See Atlas Tack Corp v. Donabed, 47 Mass.App.Ct. 221, 226-27 (1999); Girardi v. Gabriel, 38 Mass.App.Ct. 553, 559-60 (1995).
Tronic asserts that genuine issues exist as to the defendants' understanding of state and federal law in the underlying case, and as to the defendants' representation of him in that case, given his own ability, and their apparent inability, to exact a settlement offer in the underlying case. Tronic notes further that he eventually settled the underlying suit for an amount above that initial offer, after prevailing on numerous preliminary motions during discovery. The court cannot assess these ultimate factual issues without evidence, though, nor can the court properly assess the credibility of any such purported "evidence" on a motion for summary judgment. See Attorney General v Bailey, 386 Mass. 367, 370-71, cert. denied sub. nom., Bellotti v. Bailey, 459 U.S. 970 (1982); see also Pongonis v. Saab, 396 Mass. 1005, 1005 (1985) (rescript) ( that "expert testimony is not essential... where the claimed legal malpractice is so gross or obvious that laymen can rely on their common knowledge to recognize or infer" that breach); Atlas Tack Corp., 47 Mass.App.Ct. at 226-27 & n.4; accord Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein. P.C., 25 Mass.App.Ct. 107, 111 (1987); Glidden v. Terranova, 12 Mass.App.Ct. 597, 598-99...
To continue reading
Request your trial