HAMADI v. FLEMMING (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Ali Hamadi, appeals from the allowance of the motion for summary judgment filed by the defendant, Hamadi's former attorney John Flemming, in a legal malpractice action. “To prevail on a claim of negligence by an attorney, a client must demonstrate that the attorney failed to exercise reasonable care and skill in handling the matter for which the attorney was retained[;] ․ that the client has incurred a loss; and that the attorney's negligence is the proximate cause of the loss․” Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987). Our review of the allowance of the motion is de novo. Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 231 (2015). The standard is well rehearsed: Summary judgment may be allowed when there is no genuine issue of material fact and, viewing the evidence in the summary judgment record in the light most favorable to the nonmoving party, in this case, Hamadi, the movant is entitled to judgment as a matter of law. Id.

This case arises out of Flemming's representation of Hamadi in a prior Superior Court action. In that action, Hamadi alleged that the owner of a gasoline station that Hamadi, through a corporation, leased and operated, and which he wanted to purchase, and for which he had signed a purchase and sale agreement, had breached the purchase and sale agreement (which he sought to enforce via specific performance); breached the implied covenant of good faith and fair dealing by failing to remediate the property as required by the purchase and sale agreement; was unjustly enriched by money Hamadi spent improving the property in contemplation of an eventual purchase; violated G. L. c. 93A; and owed him an accounting on a $ 10,000 deposit he made with an escrow agent and that, Hamadi claimed, was required to be held in an interest-bearing account.

Of the arguments put forward by Hamadi, who now appears pro se, only two were raised in the trial court, and we address these in turn. To the extent he raises additional arguments, they are waived.

First, Hamadi argues that Flemming failed to present evidence at the underlying trial. It is difficult to determine precisely what evidence Hamadi believes should have been presented. Some of it apparently is evidence in the form of tax returns demonstrating a cumulative operating loss of $ 130,000 between 2006 and 2010, which Hamadi alleges to be the result of the failure of the gas station owner to repair the master gas pump at the gas station.

Since the jury found in the underlying action that the gas station owner was not liable, Flemming's failure to introduce evidence of operating losses, which would go only to damages, could not have been a proximate cause of any injury to Hamadi in his loss in the underlying case. Although Hamadi alleges in his verified amended complaint that this evidence would have shown the defendant's culpability in the underlying action, which could be evidence of proximate cause in this case, Hamadi points to no fact in the record to support this conclusory assertion. To the extent that the evidence at issue was offered at the underlying trial but excluded by the judge, Hamadi does not explain where the alleged negligence on the part of Flemming lies.

To the extent Hamadi is referring to some other evidence of tortious business conduct, the references to this both in Hamadi's brief and in the opposition to the motion for summary judgment filed below do not spell out precisely what evidence he claims ought to have been introduced. They state only that it would have shown that Hamadi was forced to pay an above-market rent of $ 3,700, which he agreed to do only “under the guise he would in a short time be the owner of the property,” and that the evidence would have shown a cumulative operating loss of $ 130,000. We have not been provided with a copy of the trial transcript or the motion in limine. Without them Hamadi cannot demonstrate malpractice in the failure to introduce this evidence, even assuming there is some evidence of tortious conduct that Flemming failed to introduce. And if Hamadi means more broadly that Flemming should have tried the case as one about tortious business conduct by the gas station owner in the underlying action, but did not do so, we have been provided no evidence from which a finder of fact could draw the inferences necessary to support such a conclusion.

Hamadi's second claim is that Flemming failed to send a “demand letter” for the return of a $ 10,000 deposit (to which Hamadi was entitled) that has now allegedly disappeared from an escrow account that was controlled by a now-disbarred lawyer representing another party in the underlying action. This claim, too, founders on the fact that no explanation is given either in Hamadi's appellate brief or in the opposition below as to why it was Flemming's obligation to file such a demand letter.

Moreover, it is black letter law that expert testimony is generally necessary to demonstrate in a legal malpractice action that an attorney's conduct fell below the standard of care. See Colucci, 25 Mass. App. Ct. at 111. The summary judgment record contains no such evidence. To be sure, the motion for summary judgment was filed before the close of the discovery period, but Hamadi did not file a timely motion pursuant to Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974), accompanied by affidavit, seeking to put in further evidence before the judge ruled on the motion. See Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 458 (1997), quoting Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307 (1991) (“Rule 56 [f] provides that parties objecting to the timing of summary judgment file an affidavit explaining that, ‘for reasons stated [they could not] present by affidavit facts essential to justify [their] opposition’ to a summary judgment motion and request a continuance to complete discovery”).²

Judgment affirmed.

FOOTNOTES

2.   Because there are independent bases for affirmance, we need not reach the question of issue preclusion with respect to the claim that certain evidence should have been introduced at the underlying trial. Specifically, Flemming argues that the need in the underlying trial to put in the evidence that Hamadi asserts Flemming should have put in was eliminated because claims for these damages were barred by an agreement for judgment entered by the parties to the underlying action in an earlier District Court action. “Under the doctrine of issue preclusion, ‘[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or a different claim.’ ” Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983), quoting Restatement (Second) of Judgments § 27 (1982). Although it is possible that an agreement for judgment could lead to an issue being precluded, one would have to determine what issues, if any, were necessarily decided in that action. And, in some circumstances, judgments entered into by consent are not considered to be “actually litigated” for purposes of issue preclusion. See Turner v. Community Homeowner's Ass'n, 62 Mass. App. Ct. 319, 327 (2004). Because we need not do so, we decline to explore this question. We note that, apparently recognizing the difficulty of meeting the burden to demonstrate issue preclusion, Flemming here attempts to reframe the issue preclusion argument as one about res judicata, i.e., claim preclusion. In Flemming's motion below, however, he raised only a claim of issue preclusion, and so we also decline to address this argument. See Mullins v. Pine Manor College, 389 Mass. 47, 63 (1983).