Neuwirth, et al. v. Neuwirth (Lawyers Weekly No. 11-076-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-900 Appeals Court LAURISA C. NEUWIRTH & another[1] vs. DONALD NEUWIRTH. No. 14-P-900. Middlesex. April 9, 2015. – July 22, 2015. Present: Grainger, Rubin, & Blake, JJ. Attorney at Law, Lien. Lien. Judgment. Jurisdiction, Superior Court. Superior Court, Jurisdiction. Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 5, 2009. A motion to enforce an attorney’s lien was heard by Dorothy M. Gibson, J., and the entry of a supplemental judgment of divorce nisi was directed by her. Peter H. Rosenthal for the defendant. Brad W. Greenberg for Smyth Law Offices, P.C. GRAINGER, J. The defendant husband appeals from an order incorporated in a supplemental judgement of divorce nisi enforcing an attorney’s lien on real property received by the husband in the divorce judgment. General Laws c. 221, § 50, states, in relevant part: “From the authorized commencement of an action, counterclaim or other proceeding in any court . . . the attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client’s cause of action, counterclaim or claim, upon the judgment, decree or other order in his client’s favor entered or made in such proceeding, and upon the proceeds derived therefrom. Upon the request of the client or of the attorney, the court in which the proceeding is pending or, if the proceeding is not pending in a court, the superior court may determine and enforce the lien” (emphasis added). While the action was pending, the plaintiff, Smyth Law Offices, P.C., filed motions to enable collection of attorney’s fees, including a “first amended motion for att[orne]ys lien” entered on the docket September 29, 2011. The judgment of divorce is dated November 11, 2011, and was entered on the docket November 29, 2011. Thereafter, on February 1, 2012, the plaintiff’s attorney filed a motion to enforce the attorney’s lien. On February 9 the docket reflects the entry of a “[s]upplemental [j]udgment of [d]ivorce [n]isi dated 2/1/2012 as of 11/10/2011.” We are thus called upon to determine whether the “motion to enforce attorney’s lien” could properly be considered by the Probate Court under this sequence of events. We conclude that it cannot. While we are not unsympathetic to the effort made to dispose of an issue that […]
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 […]