Opinion
No. 12–P–1192.
2013-06-3
Arthur R. GARABRANT, Jr. v. Michael F. STONE & another.
By the Court (GRASSO, SIKORA & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A judge of the Superior Court directed a verdict against the plaintiff, Arthur R. Garabrant, Jr., on various claims of legal malpractice against Garabrant's former attorney, Michael F. Stone. On appeal, Garabrant argues that the judge erred in (1) directing a verdict against him, and (2) precluding the testimony of his proposed expert witnesses. He also contends that (3) expert testimony was not required, and (4) a finding of damages, even nominal, would be multiplied under G.L. c. 93A. We affirm.
1. The directed verdict. To prevail on a claim of legal malpractice, Garabrant was required to demonstrate that he “probably would have obtained a better result had the attorney exercised adequate skill and care.” Fishman v. Brooks, 396 Mass. 643, 647 (1986). The judge's ruling directing a verdict in favor of attorney Stone may be affirmed for the reason, if no other, that Garabrant failed utterly to establish that he would have prevailed in the District Court conversion action that formed the basis of his claim of legal malpractice against attorney Stone. Garabrant failed to adduce evidence sufficient to establish that his personal property had been converted. Indeed, his only evidence of conversion was his testimony that he noticed a tractor of the same manufacture as his own in the yard of one of the defendants in the District Court conversion action. Absent sufficient proof of conversion, there was no basis upon which the jury could properly conclude that Garabrant would have been successful in his conversion action but for attorney Stone's alleged negligence.
2. Expert testimony. Even beyond that fatal deficiency, Garabrant also failed to establish another fundamental prerequisite of a legal malpractice claim—that attorney Stone breached a duty of care in handling the District Court action. We discern no abuse of discretion in the judge's allowance of a motion in limine precluding Garabrant from introducing expert testimony by attorney Gerald Garnick regarding the standard of care alleged to have been breached by attorney Stone in his handling of the District Court action. See Van Brode Group, Inc. v. Bowditch & Dewey, 36 Mass.App.Ct. 509, 520 (1994). Garabrant's expert disclosure was both untimely and inadequate under Mass.R.Civ.P. 26(b)(4), 365 Mass. 774 (1974). In his answers to interrogatories, Garabrant listed Garnick only as a fact witness who would testify as to the status of the District Court action, failing both to identify Garnick as his standard of care expert or to disclose the substance of Garnick's expert testimony. Although Garabrant later listed Garnick as his standard of care expert in the final pretrial memorandum, the expert disclosure was totally conclusory, failing to set forth the facts on which Garnick's opinion was based, or a summary of the grounds of the opinion. See rule 26, supra. Nor did Garabrant ever supplement his answers to expert interrogatories prior to trial. See Mass.R.Civ.P. 26(e)(1)(B), 365 Mass. 776 (1974). We reject Garabrant's contention that the “claimed legal malpractice [was] so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence....” Pongonis v. Saab, 396 Mass. 1005, 1005 (1985).
Similarly lacking was proof that any conversion that did occur was owing to negligence of attorney Stone, and the damages Garabrant allegedly sustained.
The judge also did not abuse his discretion in precluding the proffered expert testimony of appraiser Garrett Healey. See Adoption of Hugo, 428 Mass. 219, 232 (1998). The judge correctly determined that Healey was unable to establish a particular and reliable basis of valuation for even a single item of personalty in the underlying conversion action, relying solely on notes and general practices at the time. See Sevigny's Case, 337 Mass. 747, 751 (1958). Without a reliable basis, any valuation arrived at by Healey amounted to mere speculation and was impermissible as expert testimony. Similarly, the judge was free to reject as speculation Garabrant's own testimony as to the value of the personalty, arrived at “off the top of [his] head.” See Clark v. Mead Realty Group, Inc., 67 Mass.App.Ct. 491, 500 (2006).
3. Damages. We decline to consider Garabrant's argument concerning the awarding of nominal damages and its effect under G.L. c. 93A. The one sentence mention of the issue in the Garabrant's brief does not rise to the level of adequate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also Commonwealth v. Salcedo, 405 Mass. 346, 351 (1989).
Judgment affirmed.