Opinion
11-P-923
02-06-2012
MATTHEW B. KREPPS v. WOLF, BLOCK, SCHORR & SOLIS-COHEN LLP & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In November, 2004, a Federal jury returned a $250,000 quantum meruit verdict in favor of The Economist's Advocate, LLC (EA), a company owned and controlled by Matthew B. Krepps (underlying action). Insead, a French business school, and Insead Online (Insead) paid the ensuing judgment in full with interest. This particular case, the eighth arising from Krepps's dissatisfaction with the judgment, ended in complete failure for Krepps, who brought and tried the case pro se.
The trial judge directed verdicts on two of Krepps's three claims against Wolf, Block, Schorr & Solis-Cohen LLP (WolfBlock), the law firm that represented EA in the underlying action. A jury subsequently rejected Krepps's third claim, finding that WolfBlock had not guaranteed a specific result in the case.
The only issues pressed in this appeal concern the propriety of the directed verdict on the legal malpractice claims and the order allowing WolfBlock's motion for costs. We affirm. Legal malpractice. At the trial, Krepps explained his theories against WolfBlock in the following manner. First, Krepps argued that his main trial attorney, Kenneth Roberts, guaranteed that regardless of what the jury found with respect to Insead, he would obtain a breach of contract judgment against Cognitive Arts Corporation (CA), Insead's codefendant. Krepps also alleged that Roberts failed to accurately identify and to apprise him of adverse case law and the uncertainty of a contract judgment against CA. As a result of that guarantee (found nonexistent by the jury) and Roberts's failure to advise him, Krepps alleged that he permitted Roberts to withdraw his unjust enrichment claim against CA before trial, Krepps also turned down a final $500,000 settlement offer from Insead on Roberts's advice, and incurred concomitant legal fees in pursuing trial. Finally, Krepps claimed that Roberts improperly failed to secure a default 'quasi-contract' judgment against CA.
In the underlying action, Krepps sought to enforce the terms of the fourth version of a tripartite agreement between EA, CA, and Insead. Krepps and Edward Reiner, a CA executive, signed the fourth version, but Insead claimed it did not. During the course of the case, CA defaulted, dissolved, and sold its assets. Although the Federal judge to whom the case was assigned, Judge Robert Sweet, had entered a default judgment on the contract claim against CA, he vacated it sua sponte before trial. After a jury found that Insead had not signed or ratified the fourth version of the agreement, Judge Sweet denied EA's request for a default judgment against CA and dismissed the contract claim.
The judge properly directed a verdict based upon Krepps's inability to show actual damages proximately caused by Roberts's negligence, required elements of proof in a legal malpractice case under Massachusetts and New York law. See Fiduciary Trust Co. v. Bingham, Dana & Gould, 58 Mass. App. Ct. 245, 251 (2003); Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 (2007). Krepps could not have proved damages from the failure to obtain a default judgment against CA because any such judgment against CA in the underlying litigation would have been joint and several with Insead (and Krepps was only entitled to be paid once in full for the judgment). Krepps was precluded from recovering attorney's fees by a 2006 arbitration award (excusing him from paying $31,400.49 in fees) and a 2009 Superior Court summary judgment entered in another fee dispute with WolfBlock, a decision affirmed by this court. See Krepps v. WolfBlock LLP, 78 Mass. App. Ct. 1103 (2010). Finally, where it was undisputed at the trial that Attorney Roberts advised Krepps to accept Insead's settlement offer and that, as Krepps informed the judge, he made the decision to turn it down due to an unacceptable condition, expert opinion tying Krepps's rejection of the offer to Roberts's failure to advise him was required and lacking here.
Moreover, the judgment on the quantum meruit verdict precluded Krepps from relitigating the issue of the value of his services. See O'Brien v. Hanover Ins. Co., 427 Mass. 194, 201 n.6 (1998). See also Krepps v. Reiner, 588 F.Supp.2d 471, 482 (S.D.N.Y. 2008) (ruling by Judge Sweet in a subsequent case that Krepps, through EA, had already been fully compensated for his services). Krepps's evidence regarding the compromise verdict was grounded entirely on speculation.
Costs. In her discretion, the trial judge awarded to WolfBlock the costs of three depositions totaling $3,053. See Mass.R.Civ.P. 54(e), as amended, 382 Mass. 829 (1981). As the appellant, Krepps had the burden of providing us with an adequate record that supported his claims of error. See Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992). Krepps not only failed to provide us with the materials upon which the judge expressly based her decision (including the affidavit of WolfBlock's attorney accepted by the judge that presumably established reasonable necessity), he also failed to furnish us with a transcript of the hearing on the motion. 'Errors that are not disclosed by the record afford no basis for reversal.' Ibid.
On the view we take of the case, there is no need for us to reach the merits of the judge's alternative grounds for the directed verdict. We have considered the rest of Krepps's arguments and they are without merit.
Judgment on directed verdict affirmed.
Order on costs affirmed.
By the Court (Berry, Trainor & Hanlon, JJ.),