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Hamadi v. Fleming

Superior Court of Massachusetts, Middlesex

December 27, 2017



          Maynard M. Kirpalani, Justice

         The plaintiff, Ali Hamadi (" Hamadi"), brings this legal malpractice action against his former attorney, John Fleming (" Fleming"). Hamadi alleges " gross negligence" against Fleming claiming that his case was lost due to Fleming’s negligence in failing to introduce certain evidence, particularly of business losses, during a nine-day trial in the matter entitled, Hamadi et al. v. Sacco, as Trustee of B&S Realty Trust et al., Middlesex Superior Court, Civil Action No. 10-00787. Hamadi also alleges that Fleming negligently failed to act in a timely manner to collect a $10, 000 deposit from opposing counsel following the conclusion of the trial. Fleming moves for summary judgment on the grounds that Hamadi was precluded from offering the evidence identified by Hamadi at trial based on the doctrine of issue preclusion, which applied due to Hamadi’s entering into an Agreement for Judgment in two prior District Court actions against the same parties.[1] For the following reasons, the defendants’ Motion is ALLOWED in its entirety.


         The following facts are taken from the summary judgment record, with certain additional facts reserved for later discussion.[2]

         Fleming was hired by Hamadi to bring a civil action against Frank R. Sacco (" Sacco"), as Trustee of the B&S Realty Trust (" B&S"), and others (collectively, the " Sacco Defendants"), for damages arising under a Purchase and Sale Agreement (" P&S") concerning the proposed purchase of a gasoline station by Hamadi located at 530 Winthrop Street, Medford, Massachusetts (the " Property"). An action was filed in the Middlesex Superior Court, Hamadi et al. v. Sacco, as Trustee of B&S Realty Trust et al., Civil Action No. 10-00787 (the " Superior Court Action").[3] The verified complaint in the Superior Court Action sought damages for breach of contract and equitable remedies arising out of the P&S between Hamadi and the Sacco Defendants. Specifically, the Superior Court Action asserted several counts based upon the Sacco Defendant’s alleged failure to comply with their obligation to properly remediate contamination issues at the Property as required by the P&S. The verified complaint sought specific performance under the P&S, as well as damages to mitigate the " substantial sums" expended " in connection with the purchase of the Premises, " other unspecified damages, and an accounting and return of a $10, 000 deposit to Hamadi, which was being held by the Sacco Defendants’ attorney.

         Previously, Hamadi had been a party in two summary process actions against the Sacco Defendants in Somerville District Court, B&S Realty Trust v. Hamadi, Somerville District Court Docket No. 0710SU00018, and Hamadi v. B&S Realty Trust et al., Somerville District Court Docket No. 0710SU00734 (the " District Court Actions"). The actions were later consolidated. The complaints in those actions show B&S asserting claims for breach of lease and non-payment of rent against Hamadi, who leased the Property from B&S pursuant to a commercial lease during the pendency of the P&S, and Hamadi asserting claims for breach of lease and violation of Mass. Gen. L. 93A seeking damages arising from the Sacco Defendant’s alleged failure to maintain the Property as required by the lease, including failure to repair the Master Gasoline Pump (MGP), which resulted in Hamadi operating the gasoline station " at a loss of over twenty thousand dollars annually since 2006." On or about August 15, 2007, the District Court entered an Agreement for Judgment, signed by all parties, which required Hamadi to pay $64, 230.00 " representing the full amount of rent due and owing under the Lease, " and also " dismissed with prejudice without costs and all rights of appeal waived" Hamadi’s counterclaims against the Sacco Defendants raised in the District Court Actions.

         The 2010 Superior Court Action resulted in a nine-day jury trial, which concluded on or about October 23, 2013. Hamadi’s complaint and opposition to the motion for summary judgment in this action do not provide detailed evidence about the conduct of the trial. However, it is undisputed that Fleming conducted the trial and that both parties submitted evidence, including expert evidence, concerning the Sacco Defendants’ actions, or inactions, to remediate the contamination on the Property. During the trial, Hamadi sought to introduce his tax returns from the years 2006 through 2010, which reflected his operating losses for the gasoline station located on the Property. The trial judge refused to allow the introduction of the tax returns into evidence based upon the Agreement for Judgment in the District Court Actions. There is no written evidentiary ruling on the issue, but Fleming asserts that the tax returns were excluded because the judge found that they represented evidence of the losses sustained due to the Sacco Defendants’ alleged breach of the lease, by their failure to maintain certain equipment at the Property, and not due to the alleged breach of the P&S, which was the subject of the Superior Court Action. Hamadi disputes this assertion but has not submitted any evidence in opposition to Fleming’s proffered explanation of the trial judge’s evidentiary ruling. This court, therefore, treats the proffered reason for the evidentiary ruling as admitted. See Mass.R.Civ.P. 56(e). Following the nine-day trial, the jury returned a verdict in favor of the Sacco Defendants.

         Immediately following the trial, the judge instructed the Sacco Defendants to take all necessary actions to return a $10, 000 deposit to Hamadi that was being held in escrow by the Sacco Defendants’ counsel. It was apparently undisputed that per the terms of the P&S, Hamadi was entitled to the return of a $10, 000 deposit once the sale of the Property fell through. There is no evidence that Fleming took any further action in connection with the trial judge’s instruction concerning the deposit. Hamadi discharged Fleming approximately six months later, on or about April 30, 2014. Hamadi had not yet received the deposit from opposing counsel at the time of Fleming’s discharge.

         Hamadi filed this action in March 2016. Hamadi’s Verified Amended Complaint asserts two counts against Fleming arising from his " gross negligence" in connection with Fleming’s handling of Hamadi’s civil jury trial against the Sacco Defendants. The first count alleges that Fleming failed to introduce evidence during a trial in Superior Court of " Hamadi’s compromised financial position in running the 530 Winthrop Petroleum Station, " including operating losses suffered by Hamadi, and Fleming’s failure " to distinguish between what was part of the lease agreement and sales agreement and what was clearly not contemplated by the parties." Hamadi alleges that these failures resulted in the loss of the trial. The second count alleges Fleming failed to address " contractual protections" in the Superior Court case, including a failure to take timely action to collect a $10, 000 deposit owed to Hamadi from opposing counsel prior to withdrawing from representation of Hamadi. Hamadi alleges that Fleming failed to " enforce the sales agreement breakup clause, " specifically by not sending a demand letter to opposing counsel during the six-month period following the trial. Hamadi alleges that he is presently unable to collect the deposit which has " vanish[ed] in a now disbarred attorney’s escrow account."

         As Fleming’s relationship with Hamadi was that of attorney and client, the court interprets Hamadi’s Amended Complaint as asserting two claims of professional negligence, i.e., legal malpractice, against Fleming for these alleged actions.[4]


         I. Standard of Review

         Summary judgment shall be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue. Pederson, 404 Mass. at 17 (1989). The moving party may satisfy this burden by submitting affirmative evidence negating an essential element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis, 410 Mass. at 716. Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond with evidence of specific facts establishing the existence of a genuine dispute. Pederson, 404 Mass. at 17. " Conclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient to avoid summary judgment." Madsen v. Erwin, 395 Mass. 715, 721 (1985) (internal modifications omitted). Nor may the opposing party rest on its pleadings and mere assertions of disputed facts to defeat the motion for summary judgment. LaLonde v. Eissner, 405 Mass. 207, 209 (1989).

         When deciding a motion for summary judgment, the court considers pleadings, deposition transcripts, answers to interrogatories, admissions on file, and affidavits. Mass.R.Civ.P. 56(c). The court reviews the evidence in the light most favorable to the nonmoving party but does not weigh ...

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