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
24-P-167
MARITA E. HYMAN
vs.
ROGER STANFORD & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this legal malpractice action, the plaintiff, Marita E.
Hyman, claims that the defendants were negligent in representing
her in a 2018 lawsuit (underlying lawsuit) brought by the
Westport Point Condominium Trust (trust) against Hyman and her
husband. On the defendants' motions under Mass. R. Civ. P.
12 (b) (6), 365 Mass. 754 (1974), a Superior Court judge (motion
judge) dismissed the complaint on the ground that it was barred
by the statute of limitations. In the same decision, the motion
judge denied Hyman's cross-motion for default judgment against
some of the defendants. After a judgment of dismissal entered,
1John Markey, Stanford and Schall, and Moses, Smith, Markey and Walsh. Hyman filed a motion for reconsideration, which the motion judge
denied in a margin order. Hyman now appeals from the judgment
and the order denying reconsideration. We affirm.
Background. We accept the factual allegations in the
complaint and the attached exhibits as true for purposes of this
appeal. See Buffalo-Water 1, LLC v. Fidelity Real Estate Co.,
481 Mass. 13, 17 (2018).
In May 2019 Hyman and her husband retained the defendants
to represent them in the underlying lawsuit. Roger Stanford, of
the law firm Stanford and Schall, completed a retainer agreement
and filed a notice of appearance. Stanford was "of counsel" to
the law firm Moses, Smith, Markey and Walsh.2
The defendants produced no work product over the next two
months. On July 23, 2019, Hyman and her husband sent Stanford a
letter asserting that he was "confused about basic facts of the
case as late as last Friday and came to [their] meeting
unprepared to discuss the law," causing them "an incredible
amount of stress." Two days later, Hyman and her husband sent a
letter addressed to Markey, asserting that Stanford had "put
[their] basic health and welfare at serious risk with his acts
2 We will refer to Stanford and his law firm together as "Stanford defendants" and to John Markey, Richard Moses, and their law firm together as "Markey defendants."
2 of negligence" and requesting substitute counsel. Neither
Markey nor Moses responded to the letter.
On the morning of July 31, 2019, Stanford called Hyman to
inform her that he intended to withdraw from the underlying
lawsuit and would not be representing her and her husband at the
summary judgment hearing scheduled for later that day. The
summary judgment hearing was then continued to February 14,
2020, and a hearing on Stanford's motion to withdraw was
scheduled for August 19, 2019. In opposing Stanford's motion,
Hyman and her husband filed an affidavit dated July 31, 2019,3
alleging that "[b]y July 23, Attorney Stanford had drafted no
legal argument and had completed no drafted affidavits," that
"Stanford sought to escalate [their] health problems . . . by
failing to discuss his delays in producing any legal work in a
professional, timely and respectful manner," that they "felt
that the Rules of Professional Responsibilities for Attorneys
had been breached by Attorney Roger Stanford and expressed that
to Attorney John Markey and Attorney Richard Moses," and that
"they believed under the Rules of Professional Responsibility
3 The Stanford defendants attached the affidavit, along with other documents from the underlying lawsuit, to their motion to dismiss. In evaluating a motion to dismiss under rule 12 (b) (6), a judge may consider "public records includ[ing] the records of other courts in related proceedings, of which the judge may take judicial notice in any event." Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550, 555 (2008).
3 that MOSES, SMITH, MARKEY AND WALSH did have counsel
responsibilities to complete the work for which they were
hired." In a supplemental affidavit dated August 9, 2019, Hyman
and her husband further alleged that Stanford "intended to
actively harm his own clients" by failing to take certain
actions in the litigation and asked that the court appoint
Markey as their counsel.
On August 19, 2019, the judge in the underlying lawsuit
allowed Stanford, Markey, "and all of their associates within
their law firms to withdraw, leaving [Hyman] and her husband
without any legal counsel." Unable to find new counsel, Hyman
and her husband appeared pro se at the February 14, 2020 summary
judgment hearing. On April 21, 2020, the judge in the
underlying lawsuit granted summary judgment for the trust.
Hyman filed this action on April 18, 2023, raising three
claims: legal malpractice, breach of contract, and negligent
infliction of emotional distress.
Discussion. We review the allowance of a rule 12 (b) (6)
motion de novo. See Buffalo-Water 1, LLC, 481 Mass. at 17.
Where the allegations of a complaint show that the action is
barred by the statute of limitations, "[a] motion to dismiss
under rule 12 (b) (6) is an appropriate vehicle for raising such
a defense." Epstein v. Seigel, 396 Mass. 278, 279 (1985). The
4 applicable statute of limitations in this case is G. L. c. 260,
§ 4, which provides that "[a]ctions of contract or tort for
malpractice, error or mistake against attorneys . . . shall be
commenced only within three years next after the cause of action
accrues." Thus, Hyman's complaint, filed on April 18, 2023, is
time-barred if her claims accrued before April 18, 2020.
"Although the question of when the cause of action accrued
typically presents a question of fact, when the facts regarding
discovery of harm are undisputed, the question may be decided as
matter of law." Vinci v. Byers, 65 Mass. App. Ct. 135, 139
(2005).
Hyman argues that her claims did not accrue until April 21,
2020 -- the date that summary judgment was granted for the trust
in the underlying lawsuit -- because that was when she incurred
monetary damages. We disagree. "Although the statute of
limitations on a legal malpractice action does not begin to run
until the plaintiff has been harmed by the attorney's
malpractice, it is not necessary that the plaintiff client know
the full extent of harm or loss or know precisely in what manner
and what harmful after-effects flow from the alleged
malpractice; rather, '[o]nce a client or former client knows or
reasonably should know that he or she has sustained appreciable
harm as a result of the lawyer's conduct, the statute of
5 limitations starts to run.'" Frankston v.
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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
24-P-167
MARITA E. HYMAN
vs.
ROGER STANFORD & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this legal malpractice action, the plaintiff, Marita E.
Hyman, claims that the defendants were negligent in representing
her in a 2018 lawsuit (underlying lawsuit) brought by the
Westport Point Condominium Trust (trust) against Hyman and her
husband. On the defendants' motions under Mass. R. Civ. P.
12 (b) (6), 365 Mass. 754 (1974), a Superior Court judge (motion
judge) dismissed the complaint on the ground that it was barred
by the statute of limitations. In the same decision, the motion
judge denied Hyman's cross-motion for default judgment against
some of the defendants. After a judgment of dismissal entered,
1John Markey, Stanford and Schall, and Moses, Smith, Markey and Walsh. Hyman filed a motion for reconsideration, which the motion judge
denied in a margin order. Hyman now appeals from the judgment
and the order denying reconsideration. We affirm.
Background. We accept the factual allegations in the
complaint and the attached exhibits as true for purposes of this
appeal. See Buffalo-Water 1, LLC v. Fidelity Real Estate Co.,
481 Mass. 13, 17 (2018).
In May 2019 Hyman and her husband retained the defendants
to represent them in the underlying lawsuit. Roger Stanford, of
the law firm Stanford and Schall, completed a retainer agreement
and filed a notice of appearance. Stanford was "of counsel" to
the law firm Moses, Smith, Markey and Walsh.2
The defendants produced no work product over the next two
months. On July 23, 2019, Hyman and her husband sent Stanford a
letter asserting that he was "confused about basic facts of the
case as late as last Friday and came to [their] meeting
unprepared to discuss the law," causing them "an incredible
amount of stress." Two days later, Hyman and her husband sent a
letter addressed to Markey, asserting that Stanford had "put
[their] basic health and welfare at serious risk with his acts
2 We will refer to Stanford and his law firm together as "Stanford defendants" and to John Markey, Richard Moses, and their law firm together as "Markey defendants."
2 of negligence" and requesting substitute counsel. Neither
Markey nor Moses responded to the letter.
On the morning of July 31, 2019, Stanford called Hyman to
inform her that he intended to withdraw from the underlying
lawsuit and would not be representing her and her husband at the
summary judgment hearing scheduled for later that day. The
summary judgment hearing was then continued to February 14,
2020, and a hearing on Stanford's motion to withdraw was
scheduled for August 19, 2019. In opposing Stanford's motion,
Hyman and her husband filed an affidavit dated July 31, 2019,3
alleging that "[b]y July 23, Attorney Stanford had drafted no
legal argument and had completed no drafted affidavits," that
"Stanford sought to escalate [their] health problems . . . by
failing to discuss his delays in producing any legal work in a
professional, timely and respectful manner," that they "felt
that the Rules of Professional Responsibilities for Attorneys
had been breached by Attorney Roger Stanford and expressed that
to Attorney John Markey and Attorney Richard Moses," and that
"they believed under the Rules of Professional Responsibility
3 The Stanford defendants attached the affidavit, along with other documents from the underlying lawsuit, to their motion to dismiss. In evaluating a motion to dismiss under rule 12 (b) (6), a judge may consider "public records includ[ing] the records of other courts in related proceedings, of which the judge may take judicial notice in any event." Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550, 555 (2008).
3 that MOSES, SMITH, MARKEY AND WALSH did have counsel
responsibilities to complete the work for which they were
hired." In a supplemental affidavit dated August 9, 2019, Hyman
and her husband further alleged that Stanford "intended to
actively harm his own clients" by failing to take certain
actions in the litigation and asked that the court appoint
Markey as their counsel.
On August 19, 2019, the judge in the underlying lawsuit
allowed Stanford, Markey, "and all of their associates within
their law firms to withdraw, leaving [Hyman] and her husband
without any legal counsel." Unable to find new counsel, Hyman
and her husband appeared pro se at the February 14, 2020 summary
judgment hearing. On April 21, 2020, the judge in the
underlying lawsuit granted summary judgment for the trust.
Hyman filed this action on April 18, 2023, raising three
claims: legal malpractice, breach of contract, and negligent
infliction of emotional distress.
Discussion. We review the allowance of a rule 12 (b) (6)
motion de novo. See Buffalo-Water 1, LLC, 481 Mass. at 17.
Where the allegations of a complaint show that the action is
barred by the statute of limitations, "[a] motion to dismiss
under rule 12 (b) (6) is an appropriate vehicle for raising such
a defense." Epstein v. Seigel, 396 Mass. 278, 279 (1985). The
4 applicable statute of limitations in this case is G. L. c. 260,
§ 4, which provides that "[a]ctions of contract or tort for
malpractice, error or mistake against attorneys . . . shall be
commenced only within three years next after the cause of action
accrues." Thus, Hyman's complaint, filed on April 18, 2023, is
time-barred if her claims accrued before April 18, 2020.
"Although the question of when the cause of action accrued
typically presents a question of fact, when the facts regarding
discovery of harm are undisputed, the question may be decided as
matter of law." Vinci v. Byers, 65 Mass. App. Ct. 135, 139
(2005).
Hyman argues that her claims did not accrue until April 21,
2020 -- the date that summary judgment was granted for the trust
in the underlying lawsuit -- because that was when she incurred
monetary damages. We disagree. "Although the statute of
limitations on a legal malpractice action does not begin to run
until the plaintiff has been harmed by the attorney's
malpractice, it is not necessary that the plaintiff client know
the full extent of harm or loss or know precisely in what manner
and what harmful after-effects flow from the alleged
malpractice; rather, '[o]nce a client or former client knows or
reasonably should know that he or she has sustained appreciable
harm as a result of the lawyer's conduct, the statute of
5 limitations starts to run.'" Frankston v. Denniston, 74 Mass.
App. Ct. 366, 374 (2009), quoting Williams v. Ely, 423 Mass.
467, 473 (1996). "Appreciable harm encompasses the incurring of
legal expenses, such as litigation-related expenses in defending
against, or advancing, an issue that is central to the alleged
legal malpractice." Frankston, supra.
Here, Hyman's own letters and affidavits show that, by the
end of July 2019, she knew that Stanford had (allegedly) failed
to do any work on her case and had moved to withdraw as her
counsel on the eve of the summary judgment hearing.
Furthermore, in her August 9, 2019 affidavit, Hyman claimed that
the rules of professional responsibility obligated Moses, Smith,
Markey and Walsh to take over her case and "complete the work
for which they were hired." Given these undisputed facts, we
conclude that Hyman's claims accrued no later than August 19,
2019, when the judge in the underlying lawsuit allowed
Stanford's motion to withdraw and did not appoint Markey or any
of the other defendants to replace him. At that point Hyman
knew that the defendants had terminated their representation,
purportedly without doing any work, leaving her without counsel.
This was appreciable harm and started the running of the
limitations period, even though summary judgment against Hyman
did not enter until a few months later. See Massachusetts
6 Electric Co. v. Fletcher, Tilton & Whipple, P.C., 394 Mass. 265,
268 (1985) ("A conclusion that the [plaintiffs'] cause of action
accrued only when the . . . case was settled would be
inconsistent with the general rule in negligence actions that a
cause of action accrues when some harm has occurred even though
the full extent and nature of that harm has not been and cannot
be established immediately"); Frankston, 74 Mass. App. Ct. at
375 ("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 . . .");
Vinci, 65 Mass. App. Ct. at 140 (malpractice claim accrued once
plaintiff knew "that as a result of [attorney's] advice,
[plaintiff's] position in his divorce case had been negatively
affected," even though he "did not yet know the full extent of
the harm"). Accordingly, because Hyman did not file her
complaint within three years of August 19, 2019, the motion
judge correctly dismissed it as untimely.
We see no basis on which to disturb the motion judge's
denials of Hyman's motion for reconsideration and her cross-
motion for a default judgment against the Markey defendants. We
review both orders for an abuse of discretion. See Owens v.
Mukendi, 448 Mass. 66, 72 (2006); Greenleaf v. Massachusetts Bay
7 Transp. Auth., 22 Mass. App. Ct. 426, 429 (1986). Regarding the
motion for reconsideration, it was functionally a motion under
Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), because Hyman
served it more than ten days after entry of judgment. Hyman did
not, however, explain why she was entitled to relief under any
of the subdivisions of that rule; she argued only that the
motion judge's original decision contained a factual error. In
declining to reconsider, the motion judge stated that that
factual issue was not the sole basis for her determination that
the complaint was untimely. Not only was this within the motion
judge's discretion, any factual error in her original decision
is of no consequence on appeal because we review the dismissal
of the complaint de novo.
Regarding Hyman's cross-motion for a default judgment
against the Markey defendants, the motion judge concluded that
the "request was not in compliance with Mass. R. Civ. P. 55" and
that a default judgment was unwarranted "considering the
defendants' meritorious statute of limitations defense." This
was not an abuse of discretion, especially given that any delay
on the part of the Markey defendants was not egregious.4 See
4 Hyman asserted in her cross-motion that she served her complaint on the Markey defendants on July 6, 2023, and that they served their motion to dismiss on August 8, 2023, twelve days too late. Counsel for the Markey defendants averred in an
8 Greenleaf, 22 Mass. App. Ct. at 429 ("Entry or, conversely,
removal of default judgments has to do with the management of
the case and, as such, is committed to the sound discretion of
the . . . judge," who must balance "relative fault of parties"
and "concern about giving parties their day in court").5
Judgment affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Neyman, Shin & Englander, JJ.6),
Clerk
Entered: March 18, 2025.
affidavit that he mistakenly believed that the answer date was August 8, 2023.
5 The Stanford defendants' request for attorney's fees and double costs is denied.
6 The panelists are listed in order of seniority.