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Patel v. Martin

Superior Court of Massachusetts, Norfolk

August 16, 2019

Jay PATEL, et al.
v.
Leo MARTIN, et al. as Trustee of the Grossman Munroe Trust

          MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR RECONSIDERATION OF THE MOTION TO AMEND THEIR COMPLAINT

          Thomas A. Connors, Justice

          The plaintiffs, Jay Patel and Dipika, Inc. ("Dipika"), seek reconsideration of a denial of their motion to amend their complaint to add David Levin ("Attorney Levin") as a defendant and assert claims against him for civil conspiracy and violation of G.L.c. 93A and to add Levin and Levin, LLP as a defendant and assert claims against it for vicarious liability. The current defendants, Seymour Marcus, Leo Martin, and Ellen Rea Marcus, as trustee of the Grossman Munroe Trust (collectively, the "Trust Defendants") as well as the proposed defendants, Attorney Levin and Levin and Levin, LLP (the "Proposed Defendants"), oppose the plaintiffs’ motion asserting the motion is untimely and that the proposed amendments are futile.

          After a hearing conducted on June 17, 2019, and for the reasons set forth below, the motion for reconsideration is Allowed .

          Factual and Procedural Background

          In September 2012, the Masonic Temple Association of Quincy, Inc. ("the Masons") entered into a purchase and sale agreement ("P & S") to sell their property located at 1170 Hancock Street in Quincy ("the Property") to the Grossman Munroe Trust ("the Trust"). The parties also executed a Construction Agreement whereby the Trust would undertake certain renovation work on the Property prior to the completion of the sale. The P & S was prepared by Attorney Levin a partner at Levin and Levin, LLP. It contained a rider with a non-assignment clause which stated the following:

This Agreement may not be assigned or recorded by the BUYER without the prior written consent of the SELLER and any recordation by BUYER (including a record of notice hereof) or purported assignment by BUYER in violation of this paragraph shall be considered a default by BUYER under this Agreement whereupon all deposits hereunder shall be paid to the SELLER with intent thereon and shall become the SELLER’s property and this Agreement shall terminate without further recourse to the Parties hereto ...

          Attorney Levin had performed legal work for the Masons for more than twenty years, and he represented the Masons throughout their transactions related to the sale of the Property. For more than twenty years, he also had performed legal work for the Trust Defendants, and they had sought his advice and guidance regarding their purchase of the Property. Although the Trust Defendants listed the name Miriam Marcus as the Trust’s attorney of record for the transaction, Attorney Levin was, in fact, the only attorney that assisted the Trust Defendants with the agreement with the Masons to buy the Property. For his work on the purchase and sale of the Property, it is undisputed that Attorney Levin billed half his fees to the Masons and half to the Trust.

          In April 2013, Patel met with Martin and Attorney Levin at Martin’s office regarding the Trust’s agreement to buy the Property from the Masons. During the meeting, Patel presented a proposed assignment agreement ("Assignment") under which he would acquire the Trust’s rights in the Property in exchange for his payment to the Trust of $100,000.00. Patel, who is alleging that he believed that Attorney Levin represented both the Masons and the Trust Defendants, handed a copy of the Assignment with his signature to Attorney Levin. The Assignment, dated April 19, 2013, stated that the Assignor "covenants, warrants and represents that the Assignor has the full right, power and authority to give effect to this Assignment" and "will, on or before the Effective Date, provide the Assignee with consent of the Seller to the assignment contemplated by this Assignment." The Assignment was accepted and signed by Martin, as the power of attorney for Ellen Rea Marcus, on behalf of the Trust. Thereafter Patel undertook renovation responsibilities which the Trust had agreed to perform pursuant to the Construction Agreement.

          In June of 2013, the Masons and the Trust executed an amendment to the P & S which was prepared by Attorney Levin. Attorney Levin did not, however, inform the Masons about the Assignment to Patel at this time or at anytime prior, nor did any of the Trust Defendants.

          On September 30, 2013, the Property sustained catastrophic damages as a result of a fire. After the fire, the Masons learned of the Assignment and denied its validity since they had not provided their consent as required by the P & S. It was also revealed after the fire that Martin’s power of attorney, which had been drafted by Attorney Levin, had terminated prior to Martin having signed the Assignment of rights to Patel.

          In July 2015, Patel filed an action in Norfolk Superior Court seeking to enforce the conveyance of the Property by way of the Assignment. See C.A. No. 15-00890. The Court dismissed the case, concluding that because of the non-assignment clause contained in the P & S between the Masons and the Trust, Patel’s claims were devoid of a factual or legal basis.

          On December 23, 2015, Patel and Dipika filed the instant action against the Trust Defendants. Prior to the March 31, 2017 discovery deadline, the plaintiffs had sought to take the deposition of Attorney Levin, but this prompted the Trust Defendants to move for a protective order on grounds of attorney-client privilege. An evidentiary hearing was held on June 27 and June 28, 2017, after which the Court (Locke, J.) concluded that Attorney Levin was the Trust Defendants’ attorney after the fire but that prior to the fire, Levin had represented only the Masons and that, therefore, communications between Levin and the Trust Defendants before the fire were not protected by attorney-client privilege. The Trust Defendants sought interlocutory appellate review of that ruling and Attorney Levin’s deposition was stayed during the pendency of the appeal.

         On November 28, 2018, the Supreme Judicial Court, which had taken direct appellate review, issued its ruling on the appeal of the partial denial of the protective order. See Patel v. Martin, 481 Mass. 29 (2018). In summarizing the evidence presented at the hearing, the Court noted that although Levin had testified that prior to the fire he had not been the Trust’s attorney in connection with the purchase and sale of the Property, the Trust Defendants had averred that he was. Id. at 39. Seymour Marcus testified that Levin had told him explicitly that he was going to represent both the Trust and the Masons in the transaction, and he testified further that it had been at Levin’s suggestion that the Trust Defendants had listed Miriam Marcus as their attorney of record as a "formality." Id. at 40. Marcus further testified that Levin had offered particularized legal advice to the Trust Defendants without the Masons present. Id. at 41. Levin himself had admitted that he had never communicated about the P & S with Miriam Marcus but instead had communicated directly with the Trust Defendants. Id. at 40. Levin also had prepared the power of attorney form for Martin to sign the P & S on behalf of the Trust, and he had discussions with Martin regarding Martin’s concerns about the transaction as well as about financing and construction issues, items which were then incorporated in the rider attached to the P & S. Id. For his legal work regarding the purchase and sale of the Property, Levin had sent bills to both the Masons and the Trust Defendants, charging each equal amounts. Id. at 44. The Supreme Judicial Court concluded that, based upon this evidence, Attorney Levin could have had an attorney-client relationship with both the Trust and the Masons at the same time. Id. at 43-44. The Court remanded the matter for further credibility findings regarding the conflicting testimony offered by Levin and the Trust Defendants, which matter is pending before the hearing judge.

          On December 21, 2018, the plaintiffs served on the Trust Defendants a motion to amend their complaint to add the Proposed Defendants. This Court denied the motion on April 3, 2019, on the basis that it was untimely. The ...


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