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Murray v. Greene

Superior Court of Massachusetts, Suffolk

October 16, 2017

David MURRAY
v.
Ashley GREENE, et al.[1]

          Caption Date: September 27, 2017

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (PAPER # 12)

          Mary K. Ames, Justice

         INTRODUCTION

         This is a legal malpractice action arising out of post-divorce negotiations that were undertaken in connection with. a contempt complaint filed by an ex-wife against her ex-husband. The plaintiff, David Murray (" Murray"), asserts claims for negligence (Count I) and breach of contract (Count II) against the defendants, his former attorney, Ashley Greene (" Attorney Greene"), and the law firm for which she worked, Rudolph Friedmann, LLP (" Rudolph Friedmann") (collectively, the " Defendants"). Murray contends Attorney Greene was negligent in failing to include, in a court-approved stipulation/agreement that resolved contempt claims asserted by his ex-wife, Eleanor Murray (" Eleanor"), an additional provision requiring Eleanor to sell her home before a date certain or to limit his responsibility for payment of the mortgage on the home to a specific sum. This matter is currently before the court on the Defendant’s Motion for Summary Judgment (Paper # 12). For the reasons explained below, the Motion for Summary Judgment will be ALLOWED.

         BACKGROUND

         In 2011, Eleanor brought a Complaint for Contempt against Murray for violation of their 1998 Divorce Decree (the " Divorce Agreement"). J.A., Ex. 2. In accord with the Divorce Agreement, Murray was responsible for child support payments as well as for payment of health insurance premiums and other obligations. J.A., Ex. 3. These other obligations required Murray to convey property (the " Property") located at 16 Todd Lane in Billerica, Massachusetts, to Eleanor so that she could raise their three minor children there. J.A., Ex. 3. Under the Divorce Agreement, Murray was responsible for making the mortgage payments on the Property. J.A., Ex. 3. Murray continuously made the mortgage payments from February 1998, when the Divorce Agreement was executed, until December 7, 2011.[2] J.A., Ex. 6, Greene Depo., pp. 21-22.

         The Complaint for Contempt alleged Murray owed Eleanor $22, 500.00 in outstanding child support and $5, 815.00 in unpaid health insurance premiums, J.A., Ex. 2. Murray hired Attorney Greene from the Rudolph Friedmann law firm to help him resolve these issues. Attorney Greene negotiated a settlement agreement (the " Settlement"), on Murray’s behalf, with Eleanor acting pro se. J.A., Ex. 6, Greene Depo., pp. 55-57. A family services mediator participated in the negotiations. J.A., Ex. 6, Greene Depo., p. 57; Ex. 5, Eleanor Depo., p. 21.

         In accord with the Settlement, Eleanor forgave the $22, 500.00 Murray owed in outstanding child support payments and the $5, 815.00 he owed in outstanding health insurance premiums. In exchange, Murray agreed to: pay an outstanding property tax bill in the amount of $9, 000.00; pay an outstanding heating and air conditioning bill in the amount of $436.00; make future child support payments in accord with the Divorce Agreement; make health insurance premium payments, as set forth in the Divorce Agreement, and continue to pay the Property’s monthly mortgage payments. J.A., Ex. 1, Pl.’s Compl., Ex. A. Paragraph Six of the Settlement, which addresses the mortgage payments, states, in full: " Father agrees to continue paying the mortgage on the home located at 16 Todd Lane, Billerica, MA, until such time that the house is sold. J.A., Ex. 1, Pl.’s Compl., Ex. A, para. 6.

         In the Complaint, Murray asserts claims against Attorney Greene and Rudolph Friedmann for legal malpractice and breach of contract. J.A., Ex. 1, Pl.’s Compl . Murray alleges that it was negligent for Attorney Greene to advise him to sign the Settlement, since the Settlement did not include an additional provision either requiring Eleanor to sell the Property by a date certain or limiting his responsibility for payment of the mortgage to a specific sum. J.A., Ex. 1, Pl.’s Compl. There is no record evidence indicating Eleanor would have agreed to such a provision.

         At her deposition, Eleanor testified that she never agreed to sell the Property by a date certain. When asked, " [d]uring the December 7th, 2011 hearing, did you ever state that you would sell the former marital home by a specific date, " Eleanor answered, " Not by a specific date. I told them I was going to sell the house just because it was too big. I was down-sizing." J.A., Ex. 5, Eleanor Depo., pp. 32-33. And, when asked again, " [y]ou never agreed to sell it by a specific date" and, " [d]id you agree to limit the mortgage payments to a certain amount, " Eleanor answered, " [n]o, " to both inquiries. J.A., Ex. 5, Eleanor Depo., p. 33.

         Eleanor explained further: " I didn’t say I was immediately selling it. I knew I had a lot to do before I could sell it as far as cleaning it out, and I was doing it on my own. So I know it wasn’t like within a month or two that I was going to put it on the market. But I mean, my plan was to sell the house, yes, but when, I did not know when." J.A., Ex. 5, Eleanor Depo., p. 33. Later, when asked if she had told Murray she was going to sell the house within a certain time frame, Eleanor stated, " No, I told him that there were a few things that needed to be done before it could be sold ... I had no idea how long it would be when I would be ready to. But within the next few years ..." J.A., Ex. 5. Eleanor Depo., pp. 53-54.

         Similarly, at her deposition Attorney Greene testified that, during negotiation of the Settlement, she requested that Eleanor agree to sell the Property by a date certain but that Eleanor refused. J.A., Ex. 6, Greene Depo. pp. 64-66. More specifically, Attorney Greene testified, in pertinent part, as follows:

I was pushing for the house to be sold. The family services officer was in a position of the house doesn’t need to be sold, there’s nothing in the agreement that says the house needs to be sold. So any time I would be pushing for the house to be sold or for a specific clause to be put into our order that said the house would be sold in 60 days or 90 days, and Eleanor was saying, no, the family services officer would interject, well, she doesn’t have a legal obligation to sell the house, so that’s not an issue that we need to put into the order. We tried, I would say, I don’t know, three, four, five different tactics to get language about the house being sold in the order ... That was absolutely not going to happen from Mrs. Murray’s standpoint ... She would say, well, I can’t sell the house because X, Y, and Z ... [I]n terms of selling the house, the only phrase that she would agree to was until such time as the home is sold or until the house is sold. That was what was put in the order. And that was the only thing she would agree to. We tried time and time again to get more specific language to make sure that she would sell that house, but she just wouldn’t budge.

J.A., Ex. 6, Greene Depo., pp. 64-66. There is no record evidence adequate to dispute either this testimony or ...


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