Nataly Minkina vs. Laurie A. Frankl & others
Case Details
- Citation
- 86 Mass. App. Ct. 282
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Court affirmed summary judgment for defendant law firm RPS on malpractice and breach of fiduciary duty claims arising from their representation of plaintiff in an employment discrimination matter. Court held that failure to anticipate a change in law overruling controlling precedent does not constitute malpractice, and plaintiff's withdrawal claim lacked merit.
Excerpt
Nataly Minkina vs. Laurie A. Frankl & others. No. 13-P-1480. Suffolk. May 12, 2014. September 15, 2014. Present: Cypher, Kafker, & Hanlon, JJ. Attorney at Law, Malpractice, Withdrawal. Anti-Discrimination Law, Arbitration, Employment. Arbitration. Practice, Civil, Notice of appeal, Amendment of complaint, Costs. There was no merit to the contention by the defendants in a civil action that their motion for costs rendered the plaintiff’s subsequent notice of appeal premature or a nullity, where the judgment appealed from expressly included costs, and the defendants’ motion sought only to provide the court with the information necessary for the computation of the award. [288] In a civil action alleging that the defendant attorneys and law firm committed malpractice during their representation of the plaintiff in an employment discrimination matter, the judge did not err in granting summary judgment in favor of the defendants, where their failure to advocate for or anticipate a substantial change in law that required the overruling of a controlling precedent (here, the enforceability of an arbitration clause governing any controversy arising out of the termination of employment) could not serve as a basis for professional negligence (regardless of whether the defendants held themselves out to be employment law specialists); and where the plaintiff’s contention that she would have received a greater recovery had the case proceeded in court rather than in arbitration was speculative. [288-292] There was no merit to the argument of a plaintiff in a civil action that the defendant law firm committed a breach of its fiduciary duty when it discontinued its representation of her following a breakdown in the attorney-client relationship. [293] A trial court judge did not commit an abuse of discretion in denying a plaintiffs second motion to amend the complaint, filed three years after the first amended complaint, five months after discovery had closed, and while a summary judgment motion was pending. [293-294] Civil action commenced in the Superior Court Department on May 11, 2009. A motion to strike expert testimony was heard by Edward P. Leibensperger, J.; a motion for leave to file a second amended complaint was considered by Janet L. Sanders, J.; and the case was heard by Peter M. Lauriat, J., on a motion for summary judgment. Richard L. Neumeier for the plaintiff. Kevin G. Powers (Robert S. Mantell with him) for the defendants. Jonathan J. Margolis and Rodgers, Powers & Schwartz, LLP. Kafker, J. Nataly Minkina contends that her former counsel, Laurie A. Frankl, Jonathan J. Margolis, and Rodgers, Powers and Schwartz, LLP (hereinafter, collectively, RPS), committed legal malpractice during their representation of her in an employment discrimination action. More particularly, she claims that RPS mishandled its opposition to a motion to compel arbitration by failing to recognize that the reasoning in a then-controlling decision of this court, Mugnano-Bornstein v. Crowell, 42 Mass. App. Ct. 347 (1997) (Mugnano-Bornstein), would be rejected by the Supreme Judicial Court in a later decision, Warfield v. Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390 (2009) (Warfield). Minkina also contends that RPS breached its fiduciary duty to her when it withdrew from her representation after she criticized the performance of Frankl and other lawyers in the firm and accused at least Frankl of unprofessional conduct. In addition, Minkina contends that the judge abused his discretion in denying her second motion to amend her complaint. For the reasons stated below, we affirm the decision of the Superior Court judge rejecting the malpractice and breach of fiduciary duty claims and allowing the defendants’ motion for summary judgment. We also conclude that the denial of the second motion to amend the complaint was not an abuse of discretion. Background. In 2002, Minkina was hired as a physician by the Affiliate Physicians Group of Beth Israel Deaconess Medical Center (APG). At that time, she executed an employment agreement that contained an arbitration clause. The clause provided: “In the event that any dispute arising out of or relating to this Agreement, including without limitation any dispute regarding the validity, breach or termination of this Agreement, should occur, the parties shall for a period of thirty (30) days meet and negotiate in good faith to resolve the dispute. Any dispute that is not resolved by the parties within thirty (30) days shall be finally settled by arbitration. . . . The parties irrevocably waive any right to redress any such dispute other than by such arbitration.” In 2003, Minkina, who was then represented by counsel other than RPS, filed charges of discrimination pursuant to G. L. c. 15 IB against APG with the Massachusetts Commission Against Discrimination (MCAD). In September, 2004, APG terminated her employment. In November, 2004, predecessor counsel removed Minkina’s MCAD action to the Superior Court. In January, 2005, APG filed its answer to Minkina’s complaint, moved to dismiss one count of the complaint, and commenced discovery. After APG’s motion to dismiss was denied and Minkina responded to APG’s first request for discovery, APG moved in June, 2005, to compel arbitration of the employment discrimination claims. By this time, Minkina had retained RPS to represent her. In its memorandum in support of its motion to compel arbitration, APG argued that the arbitration clause in Minkina’s employment agreement was broad, not narrow, and that the Appeals Court decision in Mugnano-Bornstein, supra, and the Supreme Judicial Court decision in Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666-667 (2002) (Drywall Sys., Inc.), were controlling precedents requiring the arbitration of Minkina’s discrimination claims. In Mugnano-Bornstein, supra at 353, this court required the arbitration of G. L. c. 15IB claims based on an arbitration clause governing “any controversy concerning . . . termination of employment,” and in Drywall Sys., Inc., supra at 667, the Supreme Judicial Court required arbitration of claims under G. L. c. 93A based on an arbitration clause governing “[a]ny controversy or claim . . . arising out of or related to this [subcontract.” RPS did not argue that the arbitration clause at issue was narrower than the ones referenced in Mugnano-Bornstein and the other cases cited by APG and therefore not broad enough to encompass the discrimination claims. Rather, RPS contended that (1) the arbitration provision was unenforceable as it contained unconscionable prospective waivers of punitive damages and attorney’s fees, (2) APG had waived its right to demand arbitration by engaging in discovery and filing a motion to dismiss, (3) APG failed to meet the terms of the “Dispute Resolution” procedures set forth in the employment agreement, and (4) the arbitration clause did not apply to Minkina’s claims against a necessary party, APG’s president. In 2006, a judge in the Superior Court found Minkina’s G. L. c. 15 IB claim arbitrable. The judge relied on the “strong presumption of arbitrability” that attaches to broad arbitration clauses; the breadth of the language of the arbitration clause at issue here, which “encompasses not only claims based on the contract itself, but also . . . disputes arising out of the contractual relationship”; and the rule that “[statutory claims [including discrimination claims] also may be contractually limited to the arbitral forum,” as held by the Supreme Judicial Court in Drywall Sys., Inc., and the Appeals Court in Mugnano-Bornstein. The judge rejected the particular arguments made by RPS, although she concluded that attorney’s fees were recoverable. According to Minkina, on May 19, 2006, Frankl informed her that APG would be responsible for the payment of all arbitration fees, but four days later Frankl told Minkina that she was incorrect and that Minkina would be responsible for splitting the arbitration fees, requiring her to pay approximately $30,000. Thereafter, Minkina wrote to the partners of RPS via electronic mail message (e-mail) “to complain of gross negligence and unprofessionalism by an attorney of your firm.” In the e-mail, Minkina further stated that Frankl had “damaged my case and cost me thousands of dollars,” and was “more concerned about complying with APG[’s] attorney[’s] demands than helping my case.” Minkina also complained about the performance of other lawyers in the firm. She concluded the e-mail by stating, “I do not plan to choose another firm to represent me” and requested a meeting with RPS’s partners and that she be given replacement counsel, as she could not “tolerate [the] careless attitude” of her current attorney. That same day, RPS informed Minkina via e-mail that “it is clear that you have lost faith in us as your counsel. Accordingly, we shall withdraw from representing you. We shall, however, give you time to find new counsel.” By June 9, Minkina had retained new counsel. In July, 2006, Minkina filed a complaint with the office of bar counsel (OBC) contending that RPS violated the Massachusetts Rules of Professional Conduct when it advised her regarding the allocation of arbitration fees and when it withdrew its representation. As set forth in a letter to Minkina, an assistant bar counsel at the OBC concluded that “it was not unreasonable for [RPS] to determine that [Minkina’s] allegations [regarding Frankl’s legal advice] placed them in a position of conflict of interest and, as a result, that they were required to withdraw ... or, at the least, permitted to withdraw.” The assistant bar counsel further stated that the advice regarding the arbitration fees might nonetheless be the basis of a malpractice claim. A member of the Board of Bar Overseers denied a motion to reconsider the decision on withdrawal, and the Supreme Judicial Court declined an appeal of the decision. In March, 2009, the arbitrator found that APG had engaged in unlawful employment practices, and awarded Minkina approximately $266,000 in damages, fees, and costs. The arbitrator concluded that punitive damages were not recoverable — and that he would not have awarded them even if they were. Minkina did not move to vacate or modify the award. In May, 2009, Minkina filed a malpractice action against RPS, and in July, 2009, she filed a first amended complaint. In her first amended complaint, Minkina alleged that RPS, in filing Min-kina’s opposition to APG’s motion to compel arbitration, “neglected to raise important arguments that might have succeeded if raised, namely that an improper termination of Minkina’s employment negates the validity of the employment contract’s arbitration clause.” In addition, she alleged that RPS had withdrawn its representation prior to the arbitration and had improperly advised her regarding the subject of arbitration fees. Although eventually the arbitrator concluded that the arbitration fees were to be paid by APG, Minkina had been required to split the cost of the arbitration with APG, at least for a period of time. On July 27,2009, the Supreme Judicial Court issued its opinion in Warfield, 454 Mass. 390. There, the court held that for statutory discrimination claims under G. L. c. 15 IB to be arbitrable, they must be specifically referenced in the arbitration clause. Id. at 398. The court expressly overruled the Appeals Court’s analysis in Mugnano-Bornstein, which had rejected such a requirement. Warfield, supra at 397 & n.ll. More than two years later, in December, 2011, Minkina retained an expert, Samuel Estreicher, a New York University School of Law professor and director of the Center for Labor and Employment Law, who opined that “competent employment counsel would have made and pressed the argument that the arbitration clause in [Minkina’s] employment agreement with defendants in the [APG] [c]ose was a narrow one and did not authorize arbitration of employment discrimination and other statutory employment claims.” He further opined that “[w]ell before the issuance of the Massachusetts Supreme Judicial Court’s decision in Warfield . . . competent counsel would have understood that the Mugnano-Bornstein [decision,] ... on which the trial court in the [APG] [c]ose heavily relied, was plainly distinguishable, as the arbitration clause in that case referred to employment disputes and was not limited to claims arising under the employment agreement, as was true of Minkina’s arbitration agreement . . . .” He concluded: “Had Dr. Minkina been able to obtain a jury trial in this case, she would likely have obtained a significantly larger award than she in fact obtained from the arbitrator. Because of the potential availability of punitive damages, and other factors, competent defense counsel, fearing such a prospect, would likely have settled the case at a level in excess of the award she received from the arbitrator.” The assertion that Minkina would likely have obtained a greater recovery in court or through a settlement was struck by a judge in the Superior Court as speculative. RPS moved for summary judgment on all claims on June 29, 2012. On July 2, 2012, Minkina moved for leave to file a second amended complaint to add a G. L. c. 93A claim, contending that Frankl committed deceptive acts when she told Minkina that an American Arbitration Association case manager had informed Frankl that Minkina’s employment agreement was individually negotiated, and therefore, the arbitration costs would be split between the parties. RPS opposed the motion on multiple grounds, including that RPS would be prejudiced by the three-year delay in filing the second amended complaint, given RPS’s recent summary judgment motion and the close of discovery. The motion to amend was denied in July, 2012, for the reasons stated in RPS’s opposition. On April 9, 2013, an order entered allowing RPS’s motion for summary judgment. The motion judge concluded that the law existing at the time of the motion to compel arbitration, particularly Mugnano-Bornstein, supra, supported the enforcement of arbitration clauses, even where the clause did not explicitly mention G. L. c. 15 IB discrimination claims, and that Minkina’s assertion that she would have received greater damages in court than in arbitration was too speculative to support a claim for legal malpractice. The judge also rejected the breach of fiduciary duty claim arising out of RPS’s discontinuance of its representation, ruling that “Minkina’s strong criticism of Frankl’s performance, and her assertion that Frankl was unprofessional and may have committed legal malpractice, amounted to a breakdown of the attorney-client relationship sufficient to justify RPS’s withdrawal.” Judgment entered on April 10, 2013, dismissing the complaint against the defendants “with costs.” RPS served its motion for $5,949.12 in costs on April 23, 2013. On or about April 25, 2013, Minkina filed her notice of appeal of both the memorandum of decision and order on summary judgment (entered April 9, 2013), and the judgment (entered April 10, 2013). On August 1, 2013, the judge allowed the motion for costs, and awarded RPS $5,257.21. Discussion. 1. Notice of appeal and jurisdiction. As an initial matter, RPS contends that this court lacks jurisdiction to hear this appeal because Minkina’s April 25, 2013, notice of appeal of the memorandum of decision and order on judgment (entered April 9, 2013) as well as the judgment (entered April 10, 2013) was rendered premature and a nullity by RPS’s motion for costs, which it contends was a motion pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974). See Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999) (“A notice of appeal filed before the disposition of [a rule 59 motion] shall have no effect”). We disagree. The April 10, 2013, judgment provided for costs. Compare Lopes v. Peabody, 426 Mass. 1001, 1002 (1997) (where costs apparently were not requested and original judgment failed to assess costs, motion for costs filed nearly five months late treated as untimely pursuant to rule 59[e]). As an award of costs had been provided for in the judgment, RPS’s subsequent motion “for allowance of costs in the amount of $5,949.12” was directed only at the amount of costs. By appealing the judgment, which expressly included costs, Minkina preserved her right to appeal any particular award of costs. RPS’s motion did not seek to alter or amend the judgment, which already provided for costs; rather, it sought to provide the court with the “information necessary for the computation of [the costs] already awarded.” Liquor Liab. Joint Underwriting Assn, of Mass. v. Hermitage Ins. Co., 419 Mass. 316, 325 n.7 (1995). It therefore “does not involve a matter of such substance that consideration under rule 59(e) would be required.” Ibid. 2. Malpractice claim. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). “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 . . . .” Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 500 (2010), quoting from Colucci v. Rosen, Gold berg, Slavet, Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987). On appeal, Minkina argues that RPS committed malpractice by not recognizing that Mugnano-Bomstein was distinguishable or incorrectly decided, and that if RPS had avoided arbitration, she would have been awarded more damages in a judicial forum, where punitive damages were available. We conclude that it is not malpractice to fail to advocate for or anticipate a substantial change in law requiring the overruling of a controlling precedent. See Davis v. Damrell, 119 Cal. App. 3d 883, 888 (1981) (failure to anticipate “180 degrees shift in law cannot serve as the basis for professional negligence” [citation omitted]); Kaufman v. Stephen Cahen, PA., 507 So. 2d 1152, 1153 (Fla. Dist. Ct. App. 1987) (“[A]n attorney’s failure to accurately predict changes on an unsettled point of law is not actionable”); Howard v. Sweeney, 27 Ohio App. 3d 41, 43-44 (1985) (“Counsel’s failure to predict a subsequent change in a settled point of law cannot serve as a foundation for professional negligence”); 4 Mallen & Smith, Legal Malpractice § 33.5, at 656-657 & n.5 (2014) (“The rule is that an attorney is not liable for an error in judgment concerning a proposition of law that is debatable, uncertain, unsettled, or tactical”). At the time of the motion to compel arbitration, the Appeals Court decision in Mugnano-Bomstein, 42 Mass. App. Ct. at 352, requiring the arbitration of G. L. c. 15 IB claims based on an arbitration clause governing any controversy arising out of the termination of employment, and the Supreme Judicial Court decision in Drywall Sys., Inc., 435 Mass, at 667, requiring the arbitration of G. L. c. 93A claims based on an arbitration provision governing “[a]ny controversy or claim . . . arising out of or related to this [subcontract,” were two of the closest controlling cases. Both cases referred to the respective arbitration clauses, whether it be controversies arising out of or related to employment or an agreement, as “broad.” Both cases discussed the “presumption of arbitrability in the sense that [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage .... Such a presumption is particularly applicable where the clause is . . . broad.” Drywall Sys., Inc., supra at 666 (ci
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