Nellie Saninocencio v. Lubin & Meyer, P.C.

• Court: Massachusetts Appeals Court
• Decided: March 5, 2024
• Docket: 23-P-0552
• Status: Unpublished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

23-P-552

NELLIE SANINOCENCIO

vs.

LUBIN & MEYER, P.C.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal from a judgment of dismissal of a

complaint alleging one count of malpractice and one count of

fraud, filed June 13, 2022, by the plaintiff Saninocencio

against the defendant law firm, which represented her in a

medical malpractice action. The allegations in the complaint

include that, after four years of litigating her medical

malpractice claim, the law firm advised the plaintiff to, and

she did, sign an authorization and instructions to dismiss the

claim, dated October 23, 2017. The plaintiff avers she was told

by her lawyers that she would lose the case and be subject to

having to pay attorney's fees to the defendants in the

malpractice action, a risk that she would avoid by signing the

authorization for dismissal. She asserts that this amounted to

legal malpractice on the part of the defendant law firm, and that what she was told amounted to fraud. She alleges that she

was not informed that the law firm had two experts willing to

testify to negligence on the part of the medical defendants, and

that the law firm failed "to negotiate and obtain a reasonable

settlement offer from her surgeon and the firm he worked for."

Although it is not in the complaint, the plaintiff also asserts

she was not informed until January 2021 that one of the doctors

involved in her care had not been included as a medical

defendant. We affirm.

Background. There is a three-year statute of limitations

for actions of legal malpractice and fraud, and on October 20,

2020, three days shy of the third anniversary of the date the

claims arose, the plaintiff filed a complaint very similar to

the one in the instant matter, for legal malpractice and fraud

(first complaint). The first complaint was dismissed in June

2021, for failure to perfect service of process; the plaintiff

only attempted service, by hand, on the last day of the relevant

period, and service was not successfully made that day by the

deputy sheriff to whom process had been committed. The

dismissal was affirmed by a panel of this court on October 14,

2022 -- after the three-year limitations period had passed --

with the panel holding, as the trial court had, that the failure

of service was due to the late start made by plaintiff's

2 counsel, not anything done by the deputy sheriff. See Shuman v.

Stanley Works, 30 Mass. App. Ct. 951 (1991).

While the appeal was pending, the plaintiff subsequently

brought the instant complaint (second complaint), less than one

year after the first complaint's dismissal, and almost five

years after the claims arose. The second complaint was

dismissed as having been brought outside the limitations period.

In this appeal, the plaintiff argues that the claims were not

time-barred (1) because of the discovery rule, and (2) because

of G. L. c. 260, § 12, which tolls the statute of limitations if

discovery of the cause of action is delayed due to a defendant's

fraudulent concealment.

Although the judge's order dismissing the second complaint

did not mention these sources of law, in an order in response to

a motion for clarification that cited both the discovery rule

and the statute, the judge asserted that there was ample

information or notice to the plaintiff at the time she signed

her release to have uncovered or comprehended the nature of the

harm she allegedly suffered on that date, and that the

assertions in the second complaint failed to establish tolling

under either the discovery rule or the statute.

Discussion. Before us, the plaintiff alleges that within

one year of dismissal of the first complaint, she was entitled

to refile her claims under G. L. c. 260, § 12. But that statute

3 applies only when the first complaint "is dismissed for

insufficient service of process by reason of an unavoidable

accident or of a default or neglect of the officer to whom such

process is committed." The plaintiff suggests that it was

default or neglect of the deputy sheriff that led to the

insufficiency of service. But the trial court, in dismissing

the first complaint, concluded that it was the lack of diligent

effort by counsel, rather than any default or neglect of the

process server, that resulted in the failure to serve the

defendant in time. And in the appeal from the dismissal of the

first complaint, the panel concluded that "Saninocencio made a

single attempt at service, just hours before the close of

business on the ninetieth day [and the last day permitted under

Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988)],

and with no prior request to enlarge that time. . . . [I]n the

absence of other diligent efforts by [the plaintiff] and her

attorney, the process server's incomplete service is

immaterial." Saninocencio v. Lubin & Meyer, P.C., 101 Mass.

App. Ct. 1120 (2022).

The plaintiff also renews her arguments about the discovery

rule and the statute, G. L. c. 260, § 12. But there was no

evidence in the record why the information necessary to bring

the suit was not discoverable with reasonable diligence the very

day the release was filed. Before us, the plaintiff argues only

4 that she could not have known that the defendant had failed to

sue one of the doctors until her new counsel looked into her

medical malpractice case file in January of 2021. But no

allegation about this alleged failure is included in the second

complaint (and in any event, the plaintiff put forward no

evidence before the trial court that this was the case).

As to fraudulent concealment, the plaintiff argues that she

could not have known that there were two experts prepared to

testify on her behalf until her counsel discovered this

information in the medical malpractice file's pretrial

conference memorandum. But this information was publicly

available in the court file at the time she signed the

stipulation.

The plaintiff also argues -– at length -– that the Supreme

Judicial Court should not allow courts to rely on Shuman, 30

Mass. App. Ct. at 953, to allow the dismissal of complaints for

failure of service, for which there is no excusable neglect,

when the only neglect is counsel's commencement of attempts to

effectuate service during the ninety-day period, but is late in

that period. This argument is directed to the Supreme Judicial

Court, bears on the prior appeal rather than this one, and would

in any event be appropriate in a case being heard by the Supreme

Judicial Court rather than this one.

5 Finally, the plaintiff argues, without factual support,

that a wide range of judicial and other actors have conspired

against her throughout these proceedings. Losing a case, which

one party does in every case, and disagreeing with the way a

judicial decision is written, something that is of course

commonplace, are not "evidence" supporting a claim of

corruption.1

Judgment affirmed.

By the Court (Rubin, Hodgens & Smyth, JJ.2),

Assistant Clerk

Entered: March 5, 2024.

1 The appellee's request for an award of appellate attorney's fees and double costs is denied. 2 The panelists are listed in order of seniority.