Emory G. Snell, Jr. v. Albert C. Bielitz, Jr.

• Court: Massachusetts Appeals Court
• Decided: July 2, 2024
• Docket: 22-P-1014
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1014

EMORY G. SNELL, JR.

vs.

ALBERT C. BIELITZ, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Emory G. Snell, Jr., appeals from a judgment

of the Superior Court dismissing this case. The plaintiff sued

his former attorney, Albert C. Bielitz, Jr., for malpractice in

2000. The Superior Court granted the defendant's motion to

dismiss based on the running of the statute of limitations

before Snell filed his civil case. We affirm.

The plaintiff was tried for and convicted of his wife's

murder in 1995.1 The defendant acted as the plaintiff's trial

counsel. Later that year, in October 1995, the plaintiff filed

a complaint with the Board of Bar Overseers against the

1We draw the undisputed facts from the judge's memorandum of decision and order on the defendant's motion to dismiss. defendant. Nearly five years later, in 2000, the plaintiff

brought this legal malpractice suit claiming ineffective

assistance in the murder case. After a dispute about the

adequacy of service the defendant moved to dismiss the case in

February 2001; it appears there was no ruling on that motion.

The plaintiff had filed numerous cases against a variety of

defendants, which a judge of the Superior Court "fused" into one

docket in 2002, erroneously (it appears) including this legal

malpractice case. The docket reflects multiple motions by the

plaintiff to sever this case from the other cases, the last of

which (filed in March 2019) was allowed in 2020. In February

2021, the defendant's counsel2 again moved to dismiss this case

and this motion was allowed by a different judge of the Superior

Court in August 2021.

We review the granting of a motion to dismiss de novo.

Martinez v. Waldstein, 89 Mass. App. Ct. 341, 345 (2016). Out

of an abundance of caution, the Superior Court judge applied the

motion to dismiss standard applicable when the plaintiff filed

his complaint in 2000, which was set by Nader v. Citron, 372

Mass. 96 (1977). We do the same here.

2 The defendant passed away in 2020 but counsel filed the motion on his behalf. We note that "[a]ctions of contract based on malpractice survive the death of an attorney." Ryan v. Ryan, 419 Mass. 86, 89 (1994).

2 Under Nader, "a complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." 372 Mass. at 98, quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Further, we accept

the allegations of the complaint, and reasonable inferences

drawn therefrom in the plaintiff's favor, as true. See Nader,

supra. "A motion to dismiss under rule 12 (b) (6) is an

appropriate vehicle for raising" a statute of limitations

defense. Epstein v. Seigel, 396 Mass. 278, 279 (1985).

Malpractice actions against attorneys "shall be commenced

only within three years next after the cause of action accrues."

G. L. c. 260, § 4. "[T]he statute of limitations starts to run

when an event or events have occurred that were reasonably

likely to put the plaintiff on notice that someone may have

caused [him] injury." Bowen v. Eli Lilly & Co., 408 Mass. 204,

207 (1990). "The plaintiff need not know the full extent of the

injury before the statute starts to run." Id.

Here, the plaintiff was convicted on September 1, 1995, and

in October 1995 he filed a Board of Bar Overseers complaint

against the defendant alleging ineffective assistance of

counsel. By October 1995, then, the plaintiff was on notice

that his trial attorney may have caused him injury and the

3 statute of limitations started to run. See Bowen, 408 Mass. at

207. The plaintiff brought this action in August 2000, more

than five years after his cause of action accrued. Therefore,

this action is barred by the three-year statute of limitations

under G. L. c. 260, § 4. See Nader, 372 Mass. at 98.3

Although the defendant makes numerous arguments on appeal

alleging wrongdoing by the Superior Court, he does not address

the statute of limitations. We have considered these arguments

and acknowledge that the plaintiff has waited a long time --

over twenty years -- for the resolution of this action.

However, the statute of limitations operates as a bar to the

consideration of the plaintiff's late-raised claim and all

related arguments.

Judgment entered August 12, 2021, affirmed.

By the Court (Henry, Hershfang & Smyth, JJ.4),

Clerk

Entered: July 2, 2024.

The current motion to dismiss standard, Iannacchino v. 3

Ford Motor Co., 451 Mass. 623, 636 (2008), is more demanding, and thus dismissal would be proper under that standard as well.

4 The panelists are listed in order of seniority.