Wehringer v. Power and Hall, P.C.
Procedural entryThis page is a short order in Wehringer v. Power and Hall, P.C.. Read the opinion of the Court — 65 F.3d 160 →
Opinion
USCA1 Opinion
September 11, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1135
CAMERON K. WEHRINGER,
Plaintiff, Appellant,
v.
POWER AND HALL, P.C.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Stahl, Circuit Judges. ______________
____________________
Cameron K. Wehringer on brief pro se. ____________________
Raymond J. Kenney Jr., Kevin C. Reidy and Martin, Magnuson, _____________________ ______________ _________________
McCarthy & Kenney on brief for appellee. _________________
____________________
____________________
Per Curiam. Plaintiff-appellant, Cameron K. ___________
Wehringer, appeals pro se from the district court's dismissal ___ __
pursuant to Fed. R. Civ. P. 12(b)(6) of his complaint,
"without prejudice to refiling, if, as a result of the
underlying lawsuit, plaintiff is able to state a claim for
legal malpractice." He also appeals from the denial of his
motion for partial summary judgment and from the district
court's failure to grant his motion for default judgment. We
affirm on the basis of the district court's well-reasoned
Memorandum and Order, dated January 5, 1994. We add only the
following few additional comments.
I. Dismissal for Failure to State a Claim ______________________________________
The district court ruled that Wehringer's claim for
legal malpractice was premature in that it was filed before
the outcome in the underlying litigation (in which defendant-
appellant Powers & Hall, P.C. ("Powers") represented him) was
determined. The underlying case against four individuals who
allegedly tape recorded Wehringer's voice in violation of
state and federal wiretapping laws, is still pending in state
court. Powers was granted leave to withdraw from
representing Wehringer in the case on April 21, 1989. New
counsel entered an appearance on April 23, 1993. The
district court ruled that, even assuming negligence,
Wehringer could not demonstrate damages absent proof that he
probably would have succeeded in the underlying action. Such
-3-
proof could not be offered until the underlying suit was
completed.
On appeal, Wehringer argues that even before the
outcome is known in the underlying case, he has suffered harm
as a result of Powers' negligence. The alleged harm is as
follows: 1) the inability to bring a new claim (now allegedly
barred by the statute of limitations) against Audrey
Brannigan, a defendant against whom all claims were
previously voluntarily dismissed; 2) Powers' billing of
Wehringer for time spent seeking to withdraw from the case,
forcing him to bring this lawsuit; and 3) legal fees paid to
counsel hired by Powers in April 1993, to represent him in
the underlying litigation. We address each allegation of
harm separately.
A. Claim Barred by Statute of Limitations ______________________________________
Wehringer argues on appeal that as a result of
Powers' negligence in failing to even discuss with him the
feasibility of amending the complaint, he has forever lost
the opportunity to pursue a claim against Audrey Brannigan
("Brannigan"), as to which the statute of limitations
allegedly has run. This argument is doubly flawed. First,
it is not at all clear that the running of the statute of
limitations would bar the amendment of the complaint to add
Brannigan as a defendant. "Massachusetts has long had a
liberal policy allowing amendments which add or substitute
-4-
parties after the statute of limitations has expired." Bengar ______
v. Clark Equipment Co., 401 Mass. 554, 556 (1988); see Mass. ___________________ ___
R. Civ. P. 15(c); cf. Fed. R. Civ. P. 15(c). Wehringer has ___
not alleged that he ever attempted to amend the complaint to
add the claim against Brannigan.
Second, even if Powers was negligent in failing to
amend the complaint prior to the running of the statute of
limitations, Wehringer has suffered no loss therefrom unless
the claim probably would have succeeded. Until the
underlying lawsuit is completed, Wehringer cannot offer such
proof. Therefore, the complaint fails to allege harm as the
proximate result of Powers' alleged negligence in failing to
amend the complaint.
B. Billing for Time Spent Seeking to Withdraw __________________________________________
Wehringer has failed to allege harm in this respect
because in its answer to the complaint, Powers admitted that
Wehringer does not owe fees for time Powers spent seeking to
withdraw. Therefore, any potential claim of harm that may
have existed in this regard is now moot. Wehringer's
argument that he has suffered harm in the form of filing fees
and other costs of bringing this lawsuit solely to
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