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Donarumo, et al. v. Phillips, et al. (Lawyers Weekly No. 09-034-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 16-00023-C ANDREW DONARUMO, individually & d/b/a Drew Donarumo Plumbing & Heating, Donarumo Plumbing & Heating, & Drew’s Plumbing & Heating Inc. Plaintiffs v. JEFFERY J. PHILLIPS, Esq. & DANIEL TREGER, Esq. Defendants MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PURSUANT TO MASS. R. CIV. P. 56 Plaintiffs Andrew Donarumo (“Mr. Donarumo”), individually and d/b/a Drew Donarumo Plumbing & Heating, Donarumo Plumbing & Heating and Drew’s Plumbing & Heating Inc. (collectively, the “Plaintiffs”), bring this legal malpractice action against their former counsel, Jeffrey J. Phillips, Esq. (“Attorney Phillips”) and Daniel Treger, Esq. (“Attorney Treger”). Plaintiffs allege that the Defendants were negligent and violated Mass. G.L. c. 93A during their representation of them in a civil action arising out of the sale of Plaintiffs’ plumbing business. Presented for decision is the Defendants’ Motion for Summary Judgment Pursuant to Mass. R. Civ. P. 56. Following a hearing and for the reasons which follow, the Defendants’ motion shall be DENIED. FACTUAL BACKGROUND The following facts are drawn from the summary judgment record and the statement of undisputed material facts filed jointly by the parties under Superior Court Rule 9A(b)(5). The Court views this record in the light most favorable to the Plaintiffs, the non-moving party. The Furlong Litigation On January 10, 2008, Michael G. Furlong, Esq., JoAnn Furlong and Drew’s Plumbing & Heating II, Inc. (the “Furlongs”) brought an action against the Plaintiffs in Superior Court, alleging that the Plaintiffs had engaged in unlawful and bad faith conduct in connection with the sale of their plumbing business to the Furlongs (the “Furlong litigation”). More specifically, the Furlongs alleged that the Plaintiffs violated contractual and common law tort duties owed to them when, immediately following the sale, the Plaintiffs opened up a new plumbing business that began competing against the company sold to the Furlongs. The Furlongs asserted several causes of action against the Plaintiffs (including violations of Chapter 93A) which, if proven, would have allowed the Furlongs to recover multiple damages and attorneys’ fees. On June 13, 2008, the Plaintiffs retained Attorneys Phillips and Treger (collectively, the “Defendants”) to defend them in the Furlong litigation. To that end, Mr. Donarumo and Deirdre Donarumo (“Ms. Donarumo”), his spouse and the Trustee of the Donarumo Realty Trust, executed a Legal Services Agreement with the Defendants. The Defendants thereafter represented the Plaintiffs in the Furlong litigation during the case’s discovery phase, through the trial, and up until September 19, 2013, at which time the Plaintiffs directed the Defendants to cease their post-trial work on Plaintiffs’ behalf. The Defendants’ Legal […]

Leavitt v. Phillips, et al. (Lawyers Weekly No. 10-177-17)

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 SJC-12122 ALLAN M. LEAVITT vs. CYNTHIA A. PHILLIPS & others.[1] November 6, 2017. Mandamus. Practice, Civil, Action in nature of mandamus. Allan M. Leavitt appeals from a judgment of the county court denying, without a hearing, his petition for relief in the nature of mandamus. We affirm. Leavitt, the plaintiff in a civil action in the Superior Court arising from an automobile accident, sought an order directing the clerk of the Superior Court to assemble the record for appeal. At that time, Leavitt’s claims had been tried to a jury, but final judgment had not yet entered, and certain posttrial motions were pending. The single justice rightly denied relief on the ground that the request was premature.[2] In addition, Leavitt moved for the recusal of justices of this court and the Appeals Court. This motion was based on Leavitt’s apparent belief that improper ex parte communications had occurred.[3] He did not identify by name any particular justice who he believed should be recused, nor did he offer any evidence that recusal was warranted. The single justice properly denied this motion, as Leavitt demonstrated no basis in law or fact for the recusal of any justice. Judgment affirmed. The case was submitted on briefs. William J. Ruotolo for the petitioner. [1] Melissa Aebersold, The Commerce Insurance Company, Geico Insurance Company, and United Services Automobile Association. [2] A final judgment has since entered in the Superior Court, and Leavitt has filed a notice of appeal. We trust that the record will be assembled and that Leavitt’s appeal will proceed in the usual course. [3] Leavitt is represented by counsel in this matter. The papers filed by counsel in both the county court and the full court are replete with allegations of judicial misconduct and even criminal offenses. Two of the respondents requested that the single justice impose sanctions, including sanctions under Mass. R. Civ. P. 11, as amended, 456 Mass. 1401 (2010). The single justice denied these requests, and the respondents have neither appealed nor requested that we impose sanctions. At this juncture, we take this opportunity to remind counsel, going forward, to consider his professional obligations and the consequences that can ensue, not only under rule 11 and like court rules but also under the […]

Phillips v. Equity Residential Management, L.L.C. (Lawyers Weekly No. 10-169-17)

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 SJC-12247 SCOTT PHILLIPS[1] vs. EQUITY RESIDENTIAL MANAGEMENT, L.L.C. Suffolk. May 1, 2017. – October 25, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[2] Landlord and Tenant, Security deposit, Multiple damages. Statute, Construction. Certification of a question of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Joshua N. Garick (David Pastor & Preston W. Leonard also present) for the plaintiff. Craig M. White, of Illinois (Thomas H. Wintner also present) for the defendant. The following submitted briefs for amici curiae: Jeffrey J. Pokorak, Catherine Dowie, & John Pierce Wilton for Accelerator-to-Practice Program of Suffolk University Law School & others. Lawrence J. Farber for Greater Boston Real Estate Board. Alex Mitchell-Munevar & Joseph Michalakes for City Life/Vida Urbana. BUDD, J. Where a landlord’s itemized list of deductions from a tenant’s security deposit does not comply with the requirements of the Security Deposit Act, G. L. c. 186, § 15B (act), the landlord forfeits the right to retain any part of that deposit. See G. L. c. 186, § 15B (6). In certain circumstances the landlord must pay the tenant treble damages, interest, costs, and attorney’s fees, pursuant to § 15B (7). In a certified question, the United States Court of Appeals for the First Circuit asks whether a tenant is entitled to treble the amount of the entire security deposit under § 15B (7) where a landlord fails to provide to the tenant a statement of damages that meets the statutory requirements, see § 15B (4) (iii), second sentence, thereby forfeiting the entire security deposit, see § 15B (6) (b), and also fails to return that forfeited deposit within thirty days after the termination of the tenancy. See Phillips v. Equity Residential Mgt., L.L.C., 844 F.3d 1, 7-8 (1st Cir. 2016). We conclude that the Legislature did not intend for the treble damages provision in § 15B (7) to apply to a landlord’s violation of the requirements for an itemized list set out in § 15B (4) (iii), second sentence, or to the amount forfeited for violation of § 15B (6) (b), and accordingly answer the certified question no.[3] Background. We recite relevant facts presented by the Court of Appeals in its opinion, see Phillips, 844 F.3d at 3-4, along with […]