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-1362
RICHARD DIBIASIO
vs.
WILLIAM BARABINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The pro se plaintiff, Richard DiBiasio, appeals from a
judgment of the Superior Court dismissing his amended complaint
against the defendant, William Barabino, for failure to state a
claim. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). For
substantially the reasons stated by the judge in her memorandum
of decision and order, we affirm.
We review the dismissal of a "complaint de novo, taking as
true the factual allegations set forth therein and drawing all
inferences in [the plaintiff's] favor." Maling v. Finnegan,
Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339
(2015), citing Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). "[W]e look beyond 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). "[W]e do not accept legal conclusions cast in the form
of factual allegations." Schaer v. Brandeis Univ., 432 Mass.
474, 477 (2000).
The plaintiff was the defendant in a criminal case
scheduled for trial in early February 2020. After his counsel
withdrew in mid-January the plaintiff retained the defendant as
standby counsel (the defendant declined to appear as trial
counsel due to insufficient preparation time). The plaintiff
instructed the defendant to seek a continuance of the trial date
so the plaintiff could retain counsel who had adequate time to
prepare to defend him. If no continuance was granted, the
defendant was to "seek the previously offered Continuance
Without a Finding disposition." The defendant did not file a
motion to continue or -- so far as appears in our record --
request a continuance without a finding.
The plaintiff alleges that during the pretrial hearing, the
defendant advised him that he could face a five-year sentence if
he proceeded to trial and that the judge might not credit the
plaintiff's criminal responsibility defense; according to the
plaintiff, the defendant presented this as a choice to "drink
poison or get shot tomorrow." After a full colloquy, the
2 plaintiff pleaded guilty to stalking, criminal harassment, and
threatening to commit a crime. He later filed two motions to
withdraw his guilty pleas; the motions were denied, and those
denials were upheld on appeal. See Commonwealth v. DiBiasio,
101 Mass. App. Ct. 1108 (2022), S.C., 103 Mass App. Ct. 1115
(2023). The plaintiff's claims that his pleas were involuntary
were not supported by an affidavit from the defendant.
The plaintiff then filed this action, alleging negligence,
negligent and intentional infliction of emotional distress, and
breach of contract based on the defendant's failures to (1) move
for a continuance, and (2) provide an affidavit to support the
plaintiff's motions to withdraw the pleas. The defendant moved
to dismiss the case for failure to state a claim, and, in a
thorough, written decision, a judge of the Superior Court
(motion judge) allowed the motion.1
1 The plaintiff maintains that the motion judge erred by not reviewing all the attachments to the amended complaint, citing the fact that the decision mentions only three attachments. We are not persuaded. It is apparent from the decision that the judge correctly understood the scope of her review; by citing three attachments, she did not signal that her review was limited to those attachments. As the motion judge correctly noted, when considering a motion to dismiss pursuant to rule 12 (b) (6), a judge is ordinarily limited to the four corners of the complaint but may also consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint" (citation omitted). Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008).
3 Negligence, negligent infliction of emotional distress, and
breach of contract. A plaintiff seeking to prevail on a legal
malpractice claim must prove: "(a) an attorney-client
relationship; out of which arose (b) a duty to exercise a
reasonable degree of care and skill in the performance of [the
attorney's] legal duties; (c) a violation of that duty; and (d)
reasonably foreseeable loss [or damages] caused by [the
attorney's] negligence" (quotations and citations omitted).
Correia v. Fagan, 452 Mass. 120, 127 (2008).
The plaintiff's claim is a legal malpractice claim. These
counts allege that the defendant, while representing the
plaintiff as standby counsel, caused the plaintiff's damages by
failing to move for a continuance. See Earley v. Slavin, 101
Mass. App. Ct. 198, 201-202 (2022) (substance of allegations,
not form, determine whether claim sounds in malpractice or
contract). See also Hendrickson v. Sears, 365 Mass. 83, 86
(1974) ("The traditional view of an action for damages resulting
from the negligence of an attorney is that the gist of the
action, regardless of its form, is the attorney's breach of
contract").
When a legal-malpractice plaintiff is a former criminal
defendant claiming that his defense attorney "negligently
defended the plaintiff against a criminal charge," the plaintiff
"must prove by a preponderance of the evidence, not only that
4 the negligence of the attorney defendant caused [the plaintiff]
harm, but also that [the plaintiff] is innocent of the crime
charged." Correia, 452 Mass. at 127, quoting Glenn v. Aiken,
409 Mass. 699, 707 (1991). "[B]ecause a malpractice claimant
must allege his innocence of the underlying crime, an
outstanding guilty plea to that offense bars the claimant's
action for malpractice against his former attorney." Labovitz
v. Feinberg, 47 Mass. App. Ct. 306, 311 (1999).
We agree with the motion judge's conclusion that Labovitz
controls here. Here, as in Labovitz, the plaintiff's guilty
pleas were voluntary and have not been vacated. See Labovitz,
47 Mass. App. Ct. at 308 (allegations that plea was involuntary
were "contradicted by the admissions made by [the plaintiff]
under oath during his plea colloquy"). The plaintiff's legal
malpractice claim is foreclosed by this fact. Id. at 314
(successful motion to withdraw guilty plea is "a predicate to a
legal malpractice action").
We perceive no "unusual circumstance" that warrants an
exception to this rule. See Labovitz, 47 Mass. App. Ct. at 312
& n.10.
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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
23-P-1362
RICHARD DIBIASIO
vs.
WILLIAM BARABINO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The pro se plaintiff, Richard DiBiasio, appeals from a
judgment of the Superior Court dismissing his amended complaint
against the defendant, William Barabino, for failure to state a
claim. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). For
substantially the reasons stated by the judge in her memorandum
of decision and order, we affirm.
We review the dismissal of a "complaint de novo, taking as
true the factual allegations set forth therein and drawing all
inferences in [the plaintiff's] favor." Maling v. Finnegan,
Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339
(2015), citing Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011). "[W]e look beyond 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). "[W]e do not accept legal conclusions cast in the form
of factual allegations." Schaer v. Brandeis Univ., 432 Mass.
474, 477 (2000).
The plaintiff was the defendant in a criminal case
scheduled for trial in early February 2020. After his counsel
withdrew in mid-January the plaintiff retained the defendant as
standby counsel (the defendant declined to appear as trial
counsel due to insufficient preparation time). The plaintiff
instructed the defendant to seek a continuance of the trial date
so the plaintiff could retain counsel who had adequate time to
prepare to defend him. If no continuance was granted, the
defendant was to "seek the previously offered Continuance
Without a Finding disposition." The defendant did not file a
motion to continue or -- so far as appears in our record --
request a continuance without a finding.
The plaintiff alleges that during the pretrial hearing, the
defendant advised him that he could face a five-year sentence if
he proceeded to trial and that the judge might not credit the
plaintiff's criminal responsibility defense; according to the
plaintiff, the defendant presented this as a choice to "drink
poison or get shot tomorrow." After a full colloquy, the
2 plaintiff pleaded guilty to stalking, criminal harassment, and
threatening to commit a crime. He later filed two motions to
withdraw his guilty pleas; the motions were denied, and those
denials were upheld on appeal. See Commonwealth v. DiBiasio,
101 Mass. App. Ct. 1108 (2022), S.C., 103 Mass App. Ct. 1115
(2023). The plaintiff's claims that his pleas were involuntary
were not supported by an affidavit from the defendant.
The plaintiff then filed this action, alleging negligence,
negligent and intentional infliction of emotional distress, and
breach of contract based on the defendant's failures to (1) move
for a continuance, and (2) provide an affidavit to support the
plaintiff's motions to withdraw the pleas. The defendant moved
to dismiss the case for failure to state a claim, and, in a
thorough, written decision, a judge of the Superior Court
(motion judge) allowed the motion.1
1 The plaintiff maintains that the motion judge erred by not reviewing all the attachments to the amended complaint, citing the fact that the decision mentions only three attachments. We are not persuaded. It is apparent from the decision that the judge correctly understood the scope of her review; by citing three attachments, she did not signal that her review was limited to those attachments. As the motion judge correctly noted, when considering a motion to dismiss pursuant to rule 12 (b) (6), a judge is ordinarily limited to the four corners of the complaint but may also consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint" (citation omitted). Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550, 555 (2008).
3 Negligence, negligent infliction of emotional distress, and
breach of contract. A plaintiff seeking to prevail on a legal
malpractice claim must prove: "(a) an attorney-client
relationship; out of which arose (b) a duty to exercise a
reasonable degree of care and skill in the performance of [the
attorney's] legal duties; (c) a violation of that duty; and (d)
reasonably foreseeable loss [or damages] caused by [the
attorney's] negligence" (quotations and citations omitted).
Correia v. Fagan, 452 Mass. 120, 127 (2008).
The plaintiff's claim is a legal malpractice claim. These
counts allege that the defendant, while representing the
plaintiff as standby counsel, caused the plaintiff's damages by
failing to move for a continuance. See Earley v. Slavin, 101
Mass. App. Ct. 198, 201-202 (2022) (substance of allegations,
not form, determine whether claim sounds in malpractice or
contract). See also Hendrickson v. Sears, 365 Mass. 83, 86
(1974) ("The traditional view of an action for damages resulting
from the negligence of an attorney is that the gist of the
action, regardless of its form, is the attorney's breach of
contract").
When a legal-malpractice plaintiff is a former criminal
defendant claiming that his defense attorney "negligently
defended the plaintiff against a criminal charge," the plaintiff
"must prove by a preponderance of the evidence, not only that
4 the negligence of the attorney defendant caused [the plaintiff]
harm, but also that [the plaintiff] is innocent of the crime
charged." Correia, 452 Mass. at 127, quoting Glenn v. Aiken,
409 Mass. 699, 707 (1991). "[B]ecause a malpractice claimant
must allege his innocence of the underlying crime, an
outstanding guilty plea to that offense bars the claimant's
action for malpractice against his former attorney." Labovitz
v. Feinberg, 47 Mass. App. Ct. 306, 311 (1999).
We agree with the motion judge's conclusion that Labovitz
controls here. Here, as in Labovitz, the plaintiff's guilty
pleas were voluntary and have not been vacated. See Labovitz,
47 Mass. App. Ct. at 308 (allegations that plea was involuntary
were "contradicted by the admissions made by [the plaintiff]
under oath during his plea colloquy"). The plaintiff's legal
malpractice claim is foreclosed by this fact. Id. at 314
(successful motion to withdraw guilty plea is "a predicate to a
legal malpractice action").
We perceive no "unusual circumstance" that warrants an
exception to this rule. See Labovitz, 47 Mass. App. Ct. at 312
& n.10. The defendant's failure to move for a continuance did
not cause the plaintiff to serve "a longer sentence than he
otherwise would have served," and was not akin to the "failure
to communicate an earlier more favorable bargain offer." Id. at
n.10. The motion judge properly dismissed these counts.
5 Intentional infliction of emotional distress. To state a
claim for intentional infliction of emotional distress, "a
plaintiff must show (1) that the defendant intended to cause, or
should have known that his conduct would cause, emotional
distress; (2) that the defendant's conduct was extreme and
outrageous; (3) that the defendant's conduct caused the
plaintiff's distress; and (4) that the plaintiff suffered severe
distress." Sena v. Commonwealth, 417 Mass. 250, 263-264 (1994),
citing Agis v. Howard Johnson Co., 371 Mass. 140, 144-145
(1976). "Liability cannot be predicated upon 'mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities'" (citation omitted). Polay v. McMahon, 468 Mass.
379, 385 (2014). "To be considered extreme and outrageous, the
defendant's conduct must be 'beyond all bounds of decency and
. . . utterly intolerable in a civilized community.'" Sena,
supra at 264, quoting Agis, supra at 145. A judge may grant a
motion to dismiss where the conduct alleged in the complaint
does not rise to this level. Polay, supra at 386.
Here, the plaintiff alleged the defendant was not
"forthcoming" with the plaintiff's subsequent counsel; he also
alleged that the defendant refused to provide an affidavit about
the advice given during the plea hearing and lied about the
judge's forcing the plaintiff to act pro se, which prejudiced
the plaintiff's efforts to withdraw his guilty pleas. These
6 allegations "did not approach the abuse of ordinary decencies to
be found in George v. Jordan Marsh Co., 359 Mass. 244 (1971)
(extreme dunning tactics), Agis (public humiliation), or [Boyle
v.] Wenk, [378 Mass. 592, 594-595 (1979)] (persistent
misbehavior by investigator)." Richey v. American Auto. Ass'n,
380 Mass. 835, 839 (1980). Cf. Polay, 468 Mass. at 386 (filing
false police reports, verbal attacks, and surveilling the
plaintiffs' home not "sufficiently extreme and outrageous
conduct").
Judgment affirmed.
By the Court (Vuono, Singh & Hershfang, JJ.2),
Clerk
Entered: April 16, 2025.
2 The panelists are listed in order of seniority.