Zabin v. Picciotto, 06-P-1419.

Citation896 N.E.2d 937,73 Mass. App. Ct. 141
Decision Date18 November 2008
Docket NumberNo. 07-P-842.,No. 06-P-1419.,06-P-1419.,07-P-842.
PartiesAlbert ZABIN & others<SMALL><SUP>1</SUP></SMALL> v. Stefano PICCIOTTO & others<SMALL><SUP>2</SUP></SMALL> (and a companion case<SMALL><SUP>3</SUP></SMALL>).
CourtAppeals Court of Massachusetts

Melita Picciotto, pro se.

George E. Richardson for Foreign Car Center, Inc.

Danielle E. de Benedictis, Boston, for Athena Picciotto.

Timothy J. Dacey, Boston (Douglas K. Mansfield, Thomas J. Gallitano, & Scott D. Burke with him) for Edward Greer & others.

Michael J. Stone, Boston (Susan E. Cohen with him) for Schneider, Reilly, Zabin & Costello, P.C., & another.

Timothy O. Egan, Boston (Robert T. Gill with him) for Joel Eigerman & another.

Judith Picciotto, pro se, was present but did not argue.

Stefano Picciotto, pro se, was present but did not argue.

Present: GREEN, GRAHAM, & GRAINGER, JJ.

GREEN, J.

Following a lengthy trial, a Superior Court jury returned a verdict in favor of the plaintiffs on their respective claims for recovery of attorney's fees, and against the defendants on their counterclaims for malpractice and related claims. Thereafter, the trial judge (who had reserved the parties' claims and counterclaims under G.L. c. 93A) ruled that the various c. 93A claims should be dismissed. On appeal, the defendants raise numerous claims of error. In addition, the plaintiff Joel Eigerman asserts that the judge erred in concluding as matter of law that an attorney may not maintain an action against a former client under c. 93A, based on actions arising out of the former attorney-client relationship. We discern in the defendants' various claims of error no grounds for reversal of the judgment in the plaintiffs' favor on their claims for attorney's fees, and accordingly affirm the judgment as to such claims. We likewise affirm the judgment in the plaintiffs' favor on the defendants' various counterclaims. We affirm the judgment in favor of the defendant Foreign Car Center, Inc. (FCC), on Eigerman's claim under c. 93A, though we do so on grounds other than those relied upon by the trial judge. Finally, we affirm the orders of the single justice that are before us, with one modification.

1. Background. We summarize briefly the tortuous history of the litigation preceding the present appeal, to furnish context for our review of the trial itself. On March 24, 1983, FCC, its owners Stefano Picciotto and his wife, Judith Picciotto,4 and FCC employee Juan Nunez filed a complaint in the Superior Court, alleging that they had sustained damages during the late 1970s and early 1980s, as a result of emissions from the operations of a leather finishing plant operated by Salem Suede, Inc. (Salem Suede), on property adjacent to FCC.5 After a lengthy period of dormancy, a jury trial in September 1993, produced a verdict in their favor, and awarded them substantial damages.6 The judgment was affirmed on appeal, and we refer to the opinion in that appeal for further description of the facts underlying the 1983 complaint. See Foreign Car Center, Inc. v. Salem Suede, Inc., 40 Mass. App.Ct. 15, 660 N.E.2d 687 (1996).

The plaintiff Albert Zabin served as trial counsel in the 1983 action, under a written contingent fee agreement. In 1994, after judgment entered in the 1983 action but before disposition of the appeal, Stefano asked Zabin to file a complaint against Salem Suede based on injuries suffered by his daughters, the defendants Melita and Athena. Zabin filed a complaint but withdrew his appearance when Stefano failed to provide him with medical records substantiating the claimed injuries.

In April, 1996, after this court affirmed the judgment in the 1983 action and the Supreme Judicial Court denied Salem Suede's application for further appellate review, Zabin filed suit against Salem Suede and The Travelers Indemnity Company, Inc. (Travelers) seeking to collect the judgment, and claiming that Travelers had engaged in unfair claims settlement practices. After Salem Suede sought protection by means of a petition under Chapter 11 of the Bankruptcy Code, the Picciottos filed an action for legal malpractice against Zabin. Zabin withdrew as their counsel, and the Picciottos engaged the plaintiff Joel Eigerman to represent them in the bankruptcy action. By early 1997, Eigerman's relationship with the Picciottos had deteriorated, and the bankruptcy judge granted him leave to withdraw as their counsel. The Picciottos engaged the plaintiff Michael Gilleran in replacement. In April, 1997, Travelers moved for summary judgment on the grounds that the Picciottos' claims were excluded from coverage under a pollution exclusion clause contained in Salem Suede's policy with Travelers. In October, 1997, the bankruptcy judge denied Travelers's summary judgment motion, citing disputed issues of fact material to the application of the pollution exclusion clause to the Picciottos' claims. In her memorandum of decision, the bankruptcy judge offered extensive commentary adverse to Travelers relative to the unfair claims settlement practices issue.

During the summer of 1997, while awaiting the bankruptcy judge's decision on Travelers's summary judgment motion, the Picciottos asked Gilleran to file a proof of claim in the Bankruptcy Court on behalf of Melita and Athena. After Gilleran did so, the court scheduled an evidentiary hearing to estimate the value of the claims. Gilleran engaged a personal injury attorney to assist him in presenting evidence on the claims. However, after reviewing available records, the attorney advised Gilleran that he could find no evidence that Melita or Athena had been injured by emissions from Salem Suede. As with his predecessor counsel, Gilleran's relationship with the Picciottos deteriorated, and in January of 1998, the Picciottos sent Gilleran a letter accusing him of legal malpractice in his representation of them. Gilleran was granted leave to withdraw as counsel and was replaced by the plaintiff Edwin McCabe.

McCabe's relationship with the Picciottos was short lived and marked by friction. In May of 1998, he was granted leave to withdraw, and the Picciottos engaged attorney Dana Casher to replace him.7

In June, 1998, the United States District Court for the District of Massachusetts rejected Travelers's appeal from the Bankruptcy Court's denial of summary judgment. See In re Salem Suede, Inc., 221 B.R. 586 (Bankr.D.Mass.1998).

On January 6, 1999, Travelers agreed to pay to the Picciotto parties (including Juan Nunez) a lump sum of $9 million, in full settlement of all claims against Travelers, Salem Suede, and all affiliates of Salem Suede (including Salem Suede's owner, Alan Zion). The settlement was reflected in a written settlement agreement, executed by Travelers, Salem Suede, Zion, and the defendants and Juan Nunez.8 As a condition precedent to payment of the settlement, the settlement agreement required the defendants to resolve any outstanding claim that might constitute a lien on the settlement proceeds, including any claims for attorney's fees. Settlement efforts with the plaintiffs were unsuccessful, and Travelers on April 7, 1999, filed an action for interpleader to resolve the competing claims to the proceeds.9

After the plaintiffs and defendants filed responsive pleadings to Travelers's interpleader complaint, asserting a variety of claims and cross claims, a judge of the Superior Court entered an order realigning the parties and directing them to file new pleadings. The purpose of the order appears to have been to streamline the action, by framing the claims for attorney's fees by the plaintiffs and the counterclaims for legal malpractice by the defendants. The parties other than Travelers were directed to file and serve new pleadings, setting forth their respective claims. The attorneys (and their law firms) were directed to file their claims as complaints; the Picciottos, FCC, and Nunez were directed to file answers to the plaintiffs' claims, together with any counterclaims they wished to pursue. Travelers was dismissed from the action. The court retained custody of the settlement proceeds, which were invested in interest-bearing instruments.

Following extensive discovery, trial began on September 20, 2001, and lasted sixty-three days.10 On January 5, 2002, the jury returned a verdict awarding fees to the plaintiffs and rejecting the defendants' various counterclaims. Thereafter, the trial judge entered findings and rulings on the parties' claims under G.L. c. 93A, rejecting all such claims.11 Final judgment on the various claims entered accordingly, and these appeals followed.12 We address the parties' various claims of error in turn.

2. Jurisdiction. Before addressing the parties' substantive claims of error, we consider a matter of procedure. The defendants contend that we are without jurisdiction to consider this appeal, because no final judgment entered in the trial court. They observe that the interpleader complaint filed by Travelers named as a party Warren Five Cents Savings Bank (which had filed a lien against the settlement to secure a judgment it held against FCC), but that the judgment that entered did not resolve that claim. There is no merit to the contention. As we have explained, the initial interpleader complaint was superseded by separate complaints filed by the various plaintiffs. Warren Five Cents Savings Bank did not file a complaint and was not a party to the action as it proceeded thereafter. The judgment disposed of all claims among the parties to the resulting action and constitutes a final judgment.13 The appeal is properly before us.14

3. Allocation of settlement proceeds among defendants. The defendants advance several separate claims of error arising from the allocation (as among the defendants) of portions of the proceeds of the Travelers settlement. Incident to the settlement with Travelers, the defendants (and Juan Nunez) entered into an agreement with each other, allocating the respective entitlement...

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