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Cesso v. Todd

Appeals Court of Massachusetts, Essex

August 28, 2017

THOMAS CESSO
v.
GARY OWEN TODD.

          Heard: January 6, 2017.

         Civil action commenced in the Superior Court Department on November 16, 2011.

         The case was heard by Timothy Q. Feeley, J., on a motion for summary judgment.

          Mary-Ellen Manning for the plaintiff.

          Nancy M. Reimer for the defendant.

          Present: Vuono, Milkey, & Henry, JJ.

          HENRY, J.

         The plaintiff, Thomas Cesso, appeals from the summary judgment in favor of the defendant, Gary Owen Todd, on Cesso's claims of legal malpractice and misrepresentation. Because genuine issues of material fact exist on the summary judgment record, especially whether an attorney-client relationship continued to exist between Todd and Cesso after July 25, 2008, we vacate in part and affirm in part.

         Background.

         We summarize the undisputed facts drawn from the summary judgment record; to the extent the record includes disputed evidence, we consider that evidence in the light most favorable to Cesso, against whom summary judgment entered. See Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003) .

         The parties do not agree on when the attorney-client relationship began or ended. For purposes of this opinion, we note their differences and, where material, resolve differences in the light most favorable to Cesso. Cesso contends that his attorney-client relationship with Todd, an attorney at the law firm Todd & Weld LLP (Todd & Weld), commenced on May 28, 2008, when Cesso spoke with Todd to discuss the possibility of Todd taking over representation of Cesso in a divorce action that was set for trial shortly thereafter. On June 6, 2008, Cesso met with Todd to continue the discussion in person. On June 30, 2008, Todd introduced Cesso to another Todd & Weld attorney, John Earl Quigley, who would assist Todd in the representation.[1] On July 3, 2008, Cesso's prior attorney withdrew from the divorce action. On July 7, 2008, Cesso asked Todd and Quigley to send him a client agreement and to enter their appearances in the divorce action. This is when Todd contends the representation commenced. On July 9, 2008, both Todd and Quigley filed appearances for Cesso in the divorce action.

         Sixteen days later, on July 25, 2008, Quigley left Todd & Weld to start his own firm.[2] Todd alleges that he and Quigley told Cesso on July 21, 2008, that Quigley was leaving the firm and that Cesso could decide whether to stay with Todd or be represented only by Quigley going forward. Cesso disputes that such a meeting occurred and, for purposes of summary judgment, we will treat all of the facts in the light most favorable to Cesso and assume such a meeting did not occur.

         What is undisputed is that on July 28, 2008, Todd and Todd & Weld filed a notice of withdrawal of appearance dated July 25, 2008, in the divorce action. Cesso denies that he was served with this notice, and we assume he was not.[3] On July 25, 2008, Todd sent Cesso a separate letter (hereinafter, the July 25 letter) stating:

"As you may know, John E. Quigley has decided to leave Todd & Weld LLP to open his own practice, effective July 28, 2008. . . .
"Although [Quigley] and I will continue to work together and consult on your case, your hard files will need to be transferred to [Quigley's] office in Newburyport.
"It is our usual procedure to have clients agree to this in writing, and as such, I would ask that you please execute this correspondence where indicated and return to my attention as soon as possible so that we may forward your file to [Quigley's] office."

         The July 25 letter was mailed to the wrong address and Cesso did not receive it until Quigley hand-delivered it on August 6, 2008. Cesso signed the letter that day.[4]

         Cesso does not dispute that he had no in-person communication with Todd after July 25, 2008, and the last date that Todd & Weld billed him for professional services was July 25, 2008. During June and through July 25, 2008, Todd billed 4.9 hours to the ...


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