Neuwirth v. Neuwirth (Lawyers Weekly No. 11-043-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑775 Appeals Court LAURISA C. NEUWIRTH[1] vs. DONALD NEUWIRTH. No. 13‑P‑775. Middlesex. January 7, 2014. ‑ May 1, 2014. Present: Katzmann, Fecteau, & Milkey, JJ. Practice, Civil, Appeal, Dismissal of appeal, Assembly of record. Rules of Appellate Procedure. Attorney at Law, Lien. Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 5, 2009. A motion to dismiss the appeal, filed on September 12, 2012, was heard by Dorothy M. Gibson, J., and a motion to vacate the dismissal, filed on October 22, 2012, was also heard by her. Peter H. Rosenthal for Donald Neuwirth. Lisa Smyth (Brad W. Greenberg with her) for Smyth Law Offices, P.C. MILKEY, J. This case involves the efforts of the Smyth Law Offices, P.C. (Smyth Law), to collect fees allegedly owed by its former client, Donald Neuwirth (Neuwirth). Rather than filing a new claim against Neuwirth based on contract or quantum meruit, Smyth Law chose to pursue an attorney’s lien in the divorce action in which it had represented him. After a Probate and Family Court judge determined the amount of such a lien and entered a supplemental judgment of divorce nisi incorporating it, Neuwirth appealed. A few months later, the same judge dismissed that appeal based on Neuwirth’s tardiness in ordering that a transcript be made of the relevant court hearing. Before us now is Neuwirth’s appeal of the order dismissing his underlying appeal. For the reasons set forth below, we reverse and remand. 1. Background. a. The divorce action. On May 5, 2009, Neuwirth’s wife filed a complaint for divorce. The same judge who determined the amount of the lien (and who issued all other relevant rulings in the matter before us) characterized the divorce action as “long and protracted and [one that] involved many issues, including property division involving numerous parcels of real estate as well as issues of domestic violence that involved a full evidentiary hearing on a restraining order requested by [the wife].” Attorney Lisa Smyth of Smyth Law represented Neuwirth in that action until the judge allowed her motion to withdraw on July 13, 2011. Shortly thereafter, Neuwirth and his wife settled the divorce action, and a judgment of divorce nisi, incorporating their separation agreement, entered on November […]