Heard: January 6, 2017.
action commenced in the Superior Court Department on November
case was heard by Timothy Q. Feeley, J., on a motion for
Mary-Ellen Manning for the plaintiff.
M. Reimer for the defendant.
Present: Vuono, Milkey, & Henry, JJ.
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.
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) .
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. 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.
days later, on July 25, 2008, Quigley left Todd & Weld to
start his own firm. 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.
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. On July 25, 2008,
Todd sent Cesso a separate letter (hereinafter, the July 25
"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."
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.
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 ...