Balistreri v. Martin

96 Mass.App.Ct. 1116

140 N.E.3d 941 (Table)

Janine Marie BALISTRERI

v.Matthew MARTIN.

19-P-130

Appeals Court of Massachusetts.

Entered: January 13, 2020

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Janine Marie Balistreri, appeals from a judgment dismissing her complaint against the defendant, her former attorney Matthew Martin. Essentially for the reasons stated by the motion judge, we affirm.

"We review the allowance of a motion to dismiss de novo," accepting the allegations in the complaint as true and drawing every reasonable inference in Balistreri's favor. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). To determine whether Balistreri's allegations state a claim on which relief can be granted, see Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), "we look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Curtis, supra, citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). A "complaint which shows on its face that the statute of limitations has run prior to the date the action was commenced" may properly be dismissed under rule 12 (b) (6). See Babco Indus., Inc. v. New England Merchants Nat'l Bank, 6 Mass. App. Ct. 929, 929 (1978).

The gravamen of Balistreri's complaint is that Martin failed to obtain a valuation of her ex-husband's business, and that his failure adversely affected her divorce judgment. The complaint alleges violations of S.J.C. Rule 3:07, as amended, 480 Mass. 1315 (2018) (Massachusetts Rules of Professional Conduct), misrepresentation, breach of contract, and negligence. "Actions of contract or tort for malpractice, error or mistake against attorneys" must be brought within three years of when the cause of action accrues. G. L. c. 260, § 4. The statute of limitations for claims of misrepresentation is also three years. See G. L. c. 260, § 2A ; McEneaney v. Chestnut Hill Realty Corp., 38 Mass. App. Ct. 573, 576 (1995). A violation of the Rules of Professional Conduct is not a freestanding cause of action, but may be evidence of malpractice. See Fishman v. Brooks, 396 Mass. 643, 649 (1986).

Balistreri filed her complaint on July 18, 2017. To be within the statute of limitations, the underlying cause of action must have accrued on or after July 18, 2014. Balistreri claims that her action is not time barred because she did not know of the harm until, at the earliest, the final divorce judgment entered on August 6, 2014. "The statute of limitations applicable to a legal malpractice claim begins to run when a client ‘knows or reasonably should know that he or she has sustained appreciable harm as a result of the lawyer's conduct.’ " Lyons v. Nutt, 436 Mass. 244, 247 (2002), quoting Williams v. Ely, 423 Mass. 467, 473 (1996). Appreciable harm is " ‘injury, loss or detriment’ that is ‘capable of being measured or perceived.’ " Kennedy v. Goffstein, 62 Mass. App. Ct. 230, 233 (2004), quoting Black's Law Dictionary 97, 722 (7th ed. 1999).

Martin moved to withdraw as Balistreri's attorney in December 2013. By March 2014, Cynthia Brandt, the accountant whom Martin and Balistreri had retained to perform the valuation, informed Balistreri that she was unable to complete the work or to testify at the divorce trial because Martin had not provided her with the documents she needed. Recognizing the importance of obtaining the valuation, on or about March 20, 2014, Martin's successor counsel in the divorce proceedings filed a motion to compel Brandt to testify. Thus, Balistreri knew or should have known by March 2014, a date outside of the statute of limitations, that she had been harmed by Martin's alleged malpractice. "That a case is ongoing and not finally adjudicated through the trial or appellate stage does not mean that there is no duty of inquiry into the harm and its connection to the attorney's conduct and no accrual of a legal malpractice claim; the risks...