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Holland v. Kantrovitz & Kantrovitz LLP

Appeals Court of Massachusetts, Suffolk

August 15, 2017

LORI HOLLAND
v.
KANTROVITZ & KANTROVITZ LLP & others.[1]

          Heard: January 10, 2017.

         Civil action commenced in the Superior Court Department on April 29, 2013.

         The case was heard by Linda E. Giles, J., on a motion for summary judgment.

          Luke Rosseel for the plaintiff.

          Daniel R. Sonneborn for the defendants.

          Present: Grainger, Wolohojian, & Neyman, JJ. [2]

          WOLOHOJIAN, J.

         In September 2009, the plaintiff retained the defendants as personal injury counsel to represent her with respect to serious injuries she sustained when she slipped and fell on ice the year before. Approximately one month later, acting pro se, she filed for bankruptcy protection, and received a bankruptcy discharge in early 2010. Thereafter, in 2011, the defendants allowed the statute of limitations on the personal injury claim to expire without filing suit. This legal malpractice suit followed. The question on appeal is whether the plaintiff's malpractice claims were properly dismissed on summary judgment on the ground that the bankruptcy action (or the position the plaintiff took in it) foreclosed them. We reverse.

         Reserving additional facts to the analysis that follows, we recite here only the core facts, and do so in the light most favorable to the plaintiff, drawing all reasonable inferences in her favor. See, e.g., Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005). On January 15, 2008, the plaintiff, a State employee, was seriously injured when she slipped and fell on ice outside the building in which she worked. The building was owned and/or maintained by a private entity, Northland Investment Corporation. The ice had accumulated because of a defective gutter and had not been salted. The plaintiff's injuries were sufficiently severe that she lost 410 scheduled work days, and even as late as September 2012, she remained unable to work full time.

         During the workers' compensation proceedings relating to her injuries, the plaintiff was approached by defendant Martin Kantrovitz's associate, who told her that the defendants would like to represent her. She agreed and, by September 9, 2009, had retained the defendants to represent her as personal injury counsel. The plaintiff alleges that thereafter the defendants paid little, if any, attention to her case, did not meet with her in person, repeatedly failed to respond to her telephone calls, failed to investigate or pursue her claims, and failed to inquire into her financial situation.[3]

         Approximately one month after she had retained the defendants as personal injury counsel, the plaintiff, acting pro se, filed for bankruptcy protection in October 2009. The plaintiff did not inform the defendants of the bankruptcy proceeding, nor did they inquire.[4] At the same time, the plaintiff did not disclose the personal injury claim in her written filings with the bankruptcy court. She states that she did not do so because she did not understand that the bankruptcy forms called for that information and, more specifically, that she did not understand the requirement that she disclose "[o]ther contingent and unliquidated claims of every nature" pertained to the personal injury suit she had hired the defendants to pursue.

         On November 10, 2009, in response to oral questioning by the bankruptcy trustee at a meeting of creditors, the following exchange took place:

Trustee: "Does anybody owe you any money?"
Plaintiff: "Yes."
Trustee: "Have you been injured in any way --"
Plaintiff: "Yes."
Trustee: "-- that you feel you have the right to sue ...

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