VILLEGAS v. THOMAS (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In April of 2021, the plaintiff, John Villegas, filed a complaint against the defendant, Desmond FitzGerald,³ asserting claims for legal malpractice and breach of contract arising from FitzGerald's representation of Villegas between 2006 and 2014. FitzGerald moved to dismiss, arguing that the claims were barred under the three-year statute of limitations for malpractice actions, G. L. c. 260, § 4, or the six-year period for breach of contract actions, G. L. c. 260, § 2, because a June of 2014 letter that Villegas wrote to the Office of the Bar Counsel (OBC) showed that Villegas had knowledge of facts giving rise to his claims over six years before filing suit. Relying on G. L. c. 260, § 4, a Superior Court judge dismissed Villegas's complaint as untimely, concluding that Villegas knew or should have known of the bases for his claims at least by the date of his letter to the OBC. Villegas appeals, arguing that his contract claim was timely under G. L. c. 260, § 2, because the six-year statute of limitations applies and the discovery rule delayed its accrual until June of 2017. We affirm.

Background. In November of 2006, following Villegas's criminal conviction, Villegas's brother engaged FitzGerald to represent Villegas. Villegas's complaint contends that FitzGerald's representation was wrought with negligence from the start, including that he failed to speak with trial counsel, unreasonably delayed in filing a memorandum in support of a new trial motion, and included incorrect facts in that pleading.

Villegas makes similar allegations of deficiency concerning two subsequent postconviction motions, both of which were denied. Villegas claims that FitzGerald did not file notices of appeal from those appealable orders, despite Villegas's request that he do so. FitzGerald instead repeatedly moved to extend the briefing deadline in Villegas's earlier direct appeal. Although FitzGerald eventually filed timely appellate materials in May of 2013 (seven years after the conviction), according to the complaint the revised materials were lacking and contained false information. Villegas lost his appeal in April of 2014.

On June 23, 2014, Villegas wrote to the OBC complaining of FitzGerald's “lack of due diligence and communication,” and citing in particular FitzGerald's failure to inform Villegas that his appeal had been decided until it was too late to seek further appellate review. The OBC thereafter filed a disciplinary petition against FitzGerald with the Board of Bar Overseers (BBO) in April of 2016. On June 26, 2017, a BBO committee issued a report which concluded that FitzGerald violated the rules of professional conduct while representing Villegas by, among other things, (1) making frivolous claims in Villegas's first new trial motion, (2) failing to preserve for appellate review the denials of Villegas's subsequent motions, and (3) making false statements in the 2013 appellate briefing. After the BBO rejected FitzGerald's appeal, in January of 2019 a single justice of the Supreme Judicial Court mostly accepted the BBO's recommendations, and suspended FitzGerald from the practice of law for four months.

Villegas filed this complaint on April 28, 2021. FitzGerald moved to dismiss on statute of limitations grounds, arguing that the complaint detailed conduct that Villegas was or should have been aware of as of the June 2014 OBC letter. The Superior Court allowed the motion.

Discussion. On appeal, Villegas argues that his breach of contract claim was timely because (1) the six-year period in G. L. c. 260, § 2, applies, and (2) his claim did not accrue until the BBO committee issued its June of 2017 report. Our standard of review is de novo, accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom. Curtis v. Herb Chambers I-95, Inc. 458 Mass. 674, 676 (2011). Under this standard, we affirm.

First, the three-year limitations period in G. L. c. 260, § 4, and not the six-year period in G. L. c. 260, § 2, applies to Villegas's claim. Under G. L. c. 260, § 2, “[a]ctions of contract ․ shall, except as otherwise provided, be commenced only within six years next after the cause of action accrues” (emphasis added). G. L. c. 260, § 4, so “otherwise provide[s],” by stating that “[a]ctions of contract ․ for malpractice, error or mistake against attorneys” must be brought within three years. Villegas's breach of contract claim fits squarely into the description of an “[a]ction[ ] of contract ․ for malpractice” -- indeed, his claim is wholly based on FitzGerald's failure to provide “competen[t] or diligen[t]” representation. Villegas's claim is therefore subject to a three-year statute of limitations.

Second, under the discovery rule, Villegas's claim accrued by at least June 23, 2014, the date on which he wrote his letter to the OBC,⁴ almost seven years before he filed suit. The discovery rule delays accrual until “the plaintiff knows or reasonably should know that he or she has been harmed by the defendant's conduct.” Williams v. Ely, 423 Mass. 467, 473 (1996). Thus, “[r]easonable notice that ․ a particular act of another person may have been a cause of harm to a plaintiff creates a duty of inquiry and starts the running of the statute of limitations.” Bowen v. Eli Lilly & Co., 408 Mass. 204, 210 (1990). See Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 520 (1997) (claim accrues on “happening of an event likely to put the plaintiff on notice of facts giving rise” to claim).

Here, Villegas's letter to the OBC demonstrates that he was, or should have been, on notice of facts giving rise to his claim by at least June 23, 2014. On that date, Villegas wrote to the OBC that FitzGerald exhibited a “lack of due diligence and communication” in his representation, and referenced that FitzGerald's negligence in not filing for further appellate review caused Villegas to lose certain appellate rights. These allegations resemble those in Villegas's complaint, where he alleged that FitzGerald acted “without competence or diligence,” including by not filing timely appeals. The BBO letter thus confirms that Villegas was, or should have been, on “[r]easonable notice” of the facts giving rise to his claim by at least June of 2014, which triggered his “duty of inquiry and start[ed] the running of the statute of limitations.” See Bowen, 408 Mass. at 210.

Accordingly, where Villegas's breach of contract claim accrued by June 23, 2014, and he did not file his complaint until April 28, 2021, it was untimely under G. L. c. 260, § 4’s three-year limitation period. For these same reasons, that claim would still be untimely even if the six-year period in G. L. c. 260, § 2, applied, where the April 28, 2021, complaint came more than six years after Villegas's claim accrued. There was no error.

Judgment affirmed.

FOOTNOTES

3.   Villegas's complaint erroneously identifies the defendant as Desmond Patrick Thomas.

4.   Although Villegas's complaint did not reference or attach the 2014 OBC letter, the parties do not dispute the existence or accuracy of that letter as appearing in the record. See Melia v. Zenhire, Inc., 462 Mass. 164, 165-166 (2012), citing Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000).