HOLLOMAN v. COVIELLO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Tajuan Holloman, appeals from a judgment dismissing, on statute of limitations grounds, his complaint asserting legal malpractice and related claims against the defendant, James J. Coviello. Holloman principally argues that the judge erred by failing to apply the continuing representation doctrine to toll the relevant limitations periods. We affirm.

Holloman's complaint alleged that in 2010, a District Court issued a criminal complaint against him; that Coviello, an attorney, represented him in that matter; that Coviello told him that the complaint appeared to be invalid; that the parties agreed that Coviello would seek a probable cause hearing under G. L. c. 276, § 38; and that Coviello failed to press for a prompt hearing despite Holloman's “being held on ․ no bail on an invalid complaint.” ² In 2011, Holloman was indicted in Superior Court on a charge of murder in the second degree; he was arraigned on March 18, 2011, and the District Court complaint was nol prossed. Holloman alleged that Coviello's actions caused him extreme emotional distress as well as physical pain and suffering.

Coviello continued to represent Holloman in Superior Court, however, and Holloman filed three pro se motions to dismiss Coviello as his counsel. In December of 2012, Coviello was allowed to withdraw. The Superior Court docket, of which we take judicial notice, see Jarosz v. Palmer, 436 Mass. 526, 530 (2002), indicates that Holloman, represented by new counsel, eventually pleaded guilty to voluntary manslaughter and was sentenced to a term of imprisonment. Holloman filed this action on April 22, 2015,³ asserting claims for breach of contract, gross negligence, violation of G. L. c. 93A, and other violations.

Coviello moved to dismiss the action as time-barred, asserting that Holloman's claims had accrued no later than March 18, 2011 (the date of Holloman's Superior Court arraignment), and that Holloman's filing of this action more than four years later, on April 22, 2015, was too late. Coviello correctly argued that under G. L. c. 260, § 4, “[a]ctions of contract or tort for malpractice, error or mistake against attorneys” are subject to a three-year limitations period,⁴ and that under G. L. c. 260, § 5A, Holloman's G. L. c. 93A claim was subject to the four-year limitations period. The judge agreed that all claims were time-bared, and Holloman appealed.

Holloman argues that under the continuing representation doctrine, the running of the limitations period on his claims was tolled until December of 2012, when Coviello ceased to represent him. “The continuing representation doctrine ‘tolls the statute of limitations in legal malpractice actions where the attorney in question continues to represent the plaintiff's interests in the matter in question.’ ” Vinci v. Byers, 65 Mass. App. Ct. 135, 139 (2005), quoting Murphy v. Smith, 411 Mass. 133, 137 (1991). “The doctrine has no application, however, where the client actually knows that he suffered appreciable harm as a result of his attorney's conduct. If the client has such knowledge, then there is no ‘innocent reliance which the continued representation doctrine seeks to protect.’ ” Lyons v. Nutt, 436 Mass. 244, 250 (2002), quoting Cantu v. St. Paul Cos., 401 Mass. 53, 58 (1987).

Here, Holloman alleged that he was “being held on ․ no bail on an invalid complaint,” and that this was one of his reasons for wanting Coviello to seek a probable cause hearing in District Court under G. L. c. 276, § 38. “Section 38 grants all defendants, who have not been indicted by a grand jury, a right to an adversary hearing ․ on the question whether there is probable cause to bind them over for trial” (footnote omitted). Corey v. Commonwealth, 364 Mass. 137, 140-141 (1973). Once Holloman knew that he had been indicted, which he must have known no later than his Superior Court arraignment on March 18, 2011, he knew that he could no longer obtain a probable cause hearing. Whatever Coviello might accomplish during his continued representation of Holloman in Superior Court, Coviello could not undo what Holloman viewed as the harm caused by the failure to obtain a prompt probable cause hearing in District Court: confinement on an invalid complaint and resulting emotional distress.

In short, Holloman knew no later than March 18, 2011, that as a result of Coviello's actions, Holloman had suffered what he viewed as harm. That knowledge was sufficient to cause Holloman's claims to accrue. See Vinci, 65 Mass. App. Ct. at 138-139 and cases cited. After that date, Holloman could not show the “innocent reliance which the continued representation doctrine seeks to protect” (quotation omitted).⁵ Lyons, 436 Mass. at 250. The applicable limitations periods began to run no later than March 18, 2011, and expired before Holloman filed this action.⁶

Judgment affirmed.

FOOTNOTES

2.   Because we are reviewing the allowance of a motion to dismiss, we must accept the allegations of Holloman's complaint as true. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). Our doing so implies no view on the validity of Holloman's claims of malpractice.

3.   April 22, 2015, is shown on the Superior Court docket as the date this civil action was filed. Although Coviello's filings and the judge's order referred to the date of filing as May 1, 2015, we use April 22 as the operative date, and we refer to it as the filing date in the remainder of this memorandum.

4.   This provision of G. L. c. 260, § 4, disposes of Holloman's second contention on appeal: that his contract claim was subject to the general six-year limitations period of G. L. c. 260, § 2. The latter statute applies to contract claims “except as otherwise provided,” id., and the former statute is such a provision.

5.   That Holloman attempted on three occasions to discharge Coviello as his counsel in Superior Court further undermines Holloman's claim of “innocent reliance.” Our decision, however, does not rest upon this circumstance.

6.   We see no merit in Holloman's further argument that, because he was entitled to “conflict-free representation” in the Superior Court criminal matter, the limitations periods were tolled for so long as Coviello represented him. Holloman cites no authority for this tolling theory. Nor does he argue that (1) he actually sought to obtain other, conflict-free representation in order to clear the way for a suit against Coviello; and (2) he was prevented from doing so.