Opinion
No. 15–P–499.
06-20-2016
Doug REED v. Edward N. MAHLOWITZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Doug Reed appeals from a summary judgment dismissing his amended complaint for legal malpractice against the defendant, Edward N. Mahlowitz. Reed contends the Superior Court judge improperly concluded that he failed to provide evidence of a causal link between Mahlowitz's alleged negligent representation and Reed's damages. We affirm.
Then known as Karen Reed.
1. Background. The following facts are drawn from the summary judgment record, viewed in the light most favorable to Reed. See Coviello v. Richardson, 76 Mass.App.Ct. 603, 607 (2010).
Probate and Family Court proceedings. In 2008, Reed's then-wife, Karen Luther, filed a complaint for divorce. Reed retained Mahlowitz to represent him in the divorce after his first attorney withdrew. A separation agreement was prepared that provided, in relevant part, that Reed would pay $1,100 per week in alimony to Luther. This alimony provision merged into the judgment of divorce nisi, dated November 9, 2009.
Reed has not appealed from the judgment of modification.
On November 23, 2009, Reed was terminated from his employment, with three months' severance pay. Reed immediately informed Mahlowitz of his termination, and inquired about filing a complaint for modification to reduce his alimony obligation. Mahlowitz indicated to Reed that he could file a complaint for modification, but advised Reed to attempt negotiation with Luther so as to avoid the delay and expense of filing in court. Reed spent several months attempting to reach an agreement with Luther. On July 6, 2010, Luther filed a contempt complaint against Reed as a result of his failure to pay the court-ordered alimony.
On July 21, 2010, Reed filed a pro se complaint for modification in which he sought a reduction in his alimony obligation based upon his income change. At the subsequent hearing on the contempt and modification complaints, Reed was represented by yet another attorney, Melissa Dragon. The judge allowed Reed's request to reduce his alimony obligation, retroactive to the date of service of the modification complaint.
We do not overlook Reed's remaining contentions. Rather, “[w]e find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Superior Court proceedings. In November, 2012, Reed filed the present malpractice action against Mahlowitz in the Superior Court. In his amended complaint, Reed claimed approximately $115,000 in damages, consisting of alimony payments that “could have been avoided” if he filed his modification complaint earlier, plus the “fees and costs to defend” against Luther's complaint for contempt.
In January, 2015, Mahlowitz filed a motion for summary judgment, arguing in relevant part that Reed's complaint must be dismissed because Reed could not show that Mahlowitz's allegedly negligent advice was the proximate cause of Reed's alleged damages. On February 9, 2015, the judge allowed Mahlowitz's summary judgment motion. Judgment entered and this appeal followed.
2. Discussion. We review a grant of summary judgment de novo. Coviello v. Richardson, 76 Mass.App.Ct. at 607. “When asserting a claim for legal malpractice, a plaintiff bears the burden of proving that [his] attorney committed a breach of the duty to use reasonable care, that the plaintiff suffered actual loss, and that the attorney's negligence proximately caused such loss.” Atlas Tack Corp. v. Donabed, 47 Mass.App.Ct. 221, 226 (1999). Generally, the issue of proximate cause is one of fact for the jury; however, the issue may be resolved as matter of law at the summary judgment stage in a legal malpractice action. Girardi v. Gabriel, 38 Mass.App.Ct. 553, 558–559 (1995).
Separation agreement. We decline to address the merits of Reed's arguments concerning Mahlowitz's changes to the separation agreement because Reed fails to cite any legal authority in support of his contention that these allegedly negligent changes rendered the agreement unenforceable. A brief filed in this court “shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on.” Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Absent citation to legal authority in compliance with the rule, we decline to reach the merits of Reed's contentions. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 85–86 (1995).
Delay in filing modification complaint. It is well settled that probate judges “have full power and authority under [G.L.c. 208, § 37,] to modify [judgments] for alimony entered in divorce proceedings not only as to the future, but also as to arrears.” Pierce v. Pierce, 455 Mass. 286, 305 (2009), quoting from Watts v. Watts, 314 Mass. 129, 133 (1943). The decision whether to make an alimony modification rests within the sound discretion of the judge. Id. at 306.
Our examination of the summary judgment record leaves no doubt that Reed has no reasonable expectation of proving that the advice given by Mahlowitz was the proximate cause of his alleged damages. Reed's reliance on his attorney's advice did not prevent him from subsequently requesting a modification of alimony retroactive to the date of the change in his financial circumstances. See Pierce v. Pierce, supra at 305–306. See also G.L.c. 208, § 37. Despite his ability to do so, Reed failed to make such a request at the hearing on the contempt and modification complaints. Accordingly, because of the lack of a triable issue of causation, summary judgment was properly granted on Reed's legal malpractice claim against Mahlowitz . See Atlas Tack Corp. v. Donabed, supra at 225–228.
The panelists are listed in order of seniority.
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Judgment affirmed.