Preview
Date Filed 2/20/2024 11:51 AM
Superior Court - Suffolk
Docket Number 1984CV01946
19
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION NO. 1984CV01946
RICHARD L. WULSIN, ESQ.,
Plaintiff,
Vv.
MARK F. MURPHY, ESQ.,
Defendant.
NOTICE OF APPEAL
The defendant Mark F. Murphy, Esq. (“Murphy”) hereby serves notice of appeal in the
above-captioned matter pursuant to Mass. R. App. P. 3(a). Murphy appeals the following:
(1) The Order dated December 5, 2019, with notice sent on December 17, 2019, allowing the
Motion to Dismiss of Rachel A. Wulsin, attached hereto as Exhibit A.
(2) The Memorandum of Decision and Order on Cross Motions for Summary Judgment dated
March 10, 2023, with notice sent March 15, 2023, attached hereto as Exhibit B (Docket #52).
(3) The Findings of Fact, Rulings of Law, and Order for Judgment dated November 1, 2023,
with notice sent November 9, 2023, attached hereto as Exhibit C (Docket #70); and
(4) The Judgment entered on the docket on February 2, 2024, attached hereto as Exhibit D
(Docket #78).
MARK F. MURPHY, ESQ.,
By his Attorneys,
/s/ David C. Aisenberg
David C. Aisenberg, BBO #545895
Looney Cohen & Aisenberg LLP
33 Broad Street, 5" Floor
Boston, MA 02109
Tel: (617) 371-1050
Fax: (617) 371-1051
Email: daisenberg(@\ea-llp.com
Date Filed 2/20/2024 11:51 AM
Superior Court - Suffolk
Docket Number 1984CV01946
CERTIFICATE OF SERVICE
I, David C. Aisenberg, hereby certify that on February 20, 2024, a true and correct copy
of the foregoing document was served on all parties or counsel of record via electronic mail and
the ECF system.
Christian G. Samito, Esq. (BBO#639825)
Samito Law, LLC
15 Broad Street, Suite 800
Boston, MA 02109
christian@samitolaw.com
Jeffrey D. Ugino, Esq. (BBO#660353)
Gelerman and Cabral, LLC
30 Walpole Street
Norwood, MA 02062
jugino@gelermancabral.con
/s/ David C. Aisenberg
David C. Aisenberg
Date Filed 2/20/2024 11:51 AM
Superior Court - Suffolk
Docket Number 1984CV01946
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Date Filed 2/20/2024 11:51 AM
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Date Filed 2/20/2024 11:51 AM
Superfor Courts Suffolk
Docket Number 1984CV01946
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Respectfully submitted,
RACHEL A. WULSIN and WULSIN LAW, LLP,
By their Attorney,
A. L~
Christian G, Samito, BBO# 639825
Samito Law, LLC
15 Broad Street, Suite 800
Boston, MA 02109
(617) 523-0144 (telephone)
Christian@samitolaw.com
Dated: August16, 2019
SUPERIOR COURT RULE 9C CERTIFICATION
I, Christian G. Samito, hereby certify that counsel for the parties conferred by telephone on
August 16, 2019, but could not narrow the issues presented by this Motion.
UALS
Christian G. Samito
CERTIFICATE OF SERVICE
J, Christian G. Samito, hereby certify that a true and accurate copy of the foregoing document
was served on August 16, 2019, to all counsel of record via email per agreement between
counsel.
An
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Christian G. Samito
Date Filed 2/20/2024 11:51 AM
Superior Court - Suffolk
Docket Number 1984CV01946
EXHIBIT B
OL
Date Filed 2/20/2024 11:51 AM
Superior Court - Suffolk
Docket Number 1984CV01946
NOTIFY
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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 1984CV01946-BLS1
RICHARD L. WULSIN
ys.
MARK F. MURPHY
RACHEL WULSIN.& another, third-party defendants
MEMORANDUM OF DECISION AND ORDER
ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Richard L. Wulsin (“Richard”)? filed a one-count breach of contract action
against his former law partner, Mark F. Murphy (“Murphy”), seeking to recover an unpaid debt.
In response, Murphy filed a counterclaim against Richard, Richard’s daughter, Rachel Wulsin
Rachel”) (collectively, “Wulsins”), and the Wulsins’ new law firm, Wulsin Law, LLP
(“Wulsin Law”), asserting numerous claims relating to the dissolution of the prior haw firm.
Presently before the court are the parties’ cross motions for summary judgment on [both the
complaint and counterclaim. Following a hearing on October 12, 2022, and consideration of the
arguments and submitted material, the motions are ALLOWED in part and DENIED in part.
BACKGROUND
The summary judgment record sets forth the following facts, with furtherfacts reserved
for later discussion. In 2005, Richard and Murphy entered into a law partnership, Wulsin &
Murphy LLP, specializing in property tax appeals (“Wulsin Murphy”). On February 1, 2005,
they signed two agreements: a Partnership Agreement and a Side Agreement. The}single-page
Partnership Agreement defined how fees would be allocated, stated that “Neither partner shall
|Ir
' Wulsin Law, LLP. . 1
? Because the case involves several Wulsin family members, the court refers to them by their first names.
1
of
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Superior Court,- Suffolk
Docket Number 1984CV01946
incur any obligation in the name of the partnership without the prior consent of the‘other
partner,” and provided for at-will termination of the partnership upon thirty days written notice.
The Side Agreement provided Murphy a guaranteed income during the first two years of the
partnership ($175,000 the first year and $190,000 the second), even if the fees towhich he was
entitled during those two years were less that those amounts. The Side Agreement stated that
Murphy “will repay the guaranteed payment amount(s) without interest through a reallocation of
partnership fees or by direct payment in future years, but in any event no later than December 31,
2015.” In 2007, Murphy owed $123,170.03 under the Side Agreement, a sum the parties
referred to as the “Guaranteed Amount.” 1
In 2007, Wulsin Murphy added three new employees: Rachel; Richard’s son, Seth
Wulsin (“Seth”); and Richard’s sister, Anne Wulsin. Richard and Murphy agreed to equally
divide the expense of the new employees. In 2008, Richard and Murphy agreed to pawally divide
all Wulsin Murphy expenses, At the end of 2008, Murphy drew $162,563.45 more than his
earned share, adding significantly to the Guaranteed Amount. By 2010, the undisputed amount
owed was $308,824.16. Beginning in 2010, Richard and Murphy agreed to each take a $250,000
yearly draw in compensation. At some point, they also operated as if, and agreed that, each had
made a $100,000 capital contribution to Wulsin Murphy. The Partnership Agreement contains
no provisions regarding capital contribution, In 2010, Rachel began attending law school while
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still working at Wulsin Murphy; she graduated and was admitted to the bar in 2014, Thereafter, °
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she continued working at Wulsin Murphy.
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In May 2015, Richard and Murphy agreed to make Rachel a partner in Walsin Murphy,
and agreed that she would receive a draw of the firm’s earnings rather than a salary. At some
point in the weeks thereafter, Richard made a $40,000 capital contribution to Wulsin Murphy on
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Superior Court - Suffolk
DocketNumber 1984CV01946
Rachel’s behalf. In an August 2015 email, Murphy acknowledged the capital sontrpbution, but
disputed the total capital contribution from the three partners as being $200,000 rather than.
$240,000, |
!
Meanwhile, in June 2014, Richard began an email correspondence withMurphy about
the future of Wulsin Murphy, in which he discussed his “hope” that Murphy, Rachel, and Seth
would take over the firm as he entered retirement? JA 88-89. About a year later,in April 2015,
Richard again broached the subject of retirement and the future of Wulsin Murphy in an email
correspondence with Murphy, Rachel, and Seth. As the discussions among the parties
progressed, and with Rachel now a partner, an of counsel position was proposed for Murphy.
Murphy ultimately rejected that proposal and decided to leave the firm. To that end, on July 21,
2015, he wrote in an email to Richard, Seth, and Rachel: “I have reached the conclusion that the
best alternative is to dissolve the firm and go our separate ways.” JA 100. Murphy stated inthe
email that he planned to start his own practice on September 1, 2015. ‘In the same email, Murphy
acknowledged the outstanding Guaranteed Amount. Over the next several months, {the parties
wound down Wulsin Murphy and allocated clients among Richard, Rachel, and Murphy.
Richard, Rachel, and Seth thereafter began operating as Wulsin Law.
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On January 3, 2016, Richard sent Murphy a written demand for the outstanding
$308,824.16 Guaranteed Amount. Murphy responded in writing with a draft complaint, and
suggested Richard consider the impact litigation would have on his family. Murphy referred to
files he found on shared Wulsin Murphy folders that showed Richard had edited and assisted 1
Rachel with some law school assignments. Murphy suggested he and Richard execute mutual 11
‘
> Richard wrote: “It’s my hope that as I fade into the horizon, you, Seth and Rachel will be the nucleus of the firm
and that, at some point, the three of you will share the net income. On the other hand, Rachel may decide to have a
family and only work part-time. Things change notwithstanding my hopes. And my hopes are just that, my hopes.”
JA 89, :
I
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Superior Court - Suffolk
Docket Number 1984CV01946
releases, On June 1, 2016, Murphy’s attorney sent Richard an emai! further discussing what
Murphy considered “fraudulent academic collaboration.” A later complaint to the Board of Bar
Overseers (“BBO”) resulted in an investigation with no finding of any ethical violation.
On June 18, 2019, Richard commenced the present action seeking repayment of the
Guaranteed Amount. On July 31, 2019, Murphy filedhis answer and twenty-one count
counterclaim, in which he asserts multiple claims for breach of contract, breach of the implied
covenant of good faith and fair dealing, unjust enrichment, and quantum meruit. The
counterclaim also brings claims for breach of fiduciary duty, civil conspiracy, deceit, negligent
i
misrepresentation, and conversion. Richard presently moves for summary judgment on his
complaint and the counterclaim actions against him, while Rachel and Wulsin Law move for
summary judgment on the counterclaim counts against them. Murphy moves for partial
summary judgment on Counts 1, 4, and 5 of his counterclaim.*
STANDARD OF REVIEW ~
To prevail on a motion for summary judgment, the moving party bears the burden of
*“show[ing] that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law” based on the undisputed facts, Mass. R. Giv. P, 56(c).
See Augat, Inc. v, Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In considering a motion for
summary judgment, the court views the evidence and draws all reasonable inferences in the light
most favorable to the nonmoving party. Currier v. National Ba. of‘Med. Examiners, 462 Mass.
1, 11 (2012). Where, as here, the court is presented with cross motions for summary judgment,
the standard of review is identical for all motions. Epstein v. Board of Appeals of. Bbston, T7
Mass. App. Ct. 752, 756 (2010).
1
4 Counts 14, 16, 17, and 20 of the Counterclaim already have been dismissed. See endorsement onDocket No. 12.
4
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Superior Court - Suffolk
Pocket Number 1984CV01946
DISCUSSION
|
As noted, the complaint is limited to a breach of contract action seeking the pnpeid
Guaranteed Amount. The counterclaim counts largely attack the Wulsins’ partnership conduct,
and include allegations that: 1) an amendment to the Side Agreement delayed its due date; 2)
Richard committed wrongdoing in freezing Murphy out of the partnership and showing
favoritism toward his children in the running of Wulsin Murphy; and 3) Richard’s family
members were paid above market salaries at Murphy’s expense. Each subject area and its related
;
i
claims are addressed below. |
A. Guaranteed Amount under the Side Agreement
Richard’s motion for summary judgment on his complaint is ALLOWED. {The Side
Agreement unambiguously states that any amount owed must be paid by December 31, 201 5.
Murphy admits that he has paid nothing on the undisputed Guaranteed Amount owed,
‘'
$308,824.16. i
Contrary to Murphy’s argument, no language in the June 19, 2014, string ofiemails
provides for an extension of that due date — including the sentence “Over the next five to ten
years, as I slow down, I will draw less.” — which concerns Richard’s retirement, not the
Guaranteed Amount. Indeed, Murphy’s later July 2015 proposal to extend the due date, see JA
99, is evidence that no agreement had been reached about an extension the year before.’ Neither
|
is there any evidence in the record, or in the language of the Partnership Agreement! or the Side ‘
Agreement, establishing that they are somehow incorporated into each other as asingle
agreement, or even if that were true, how that fact would somehow extend the due date.
5 Murphy wrote on July 8, 2015: “We should extend the deadline for payment of the Guaranteed Amount to a period
of time afier we expect to be paid on the last Wulsin Murphy receivable. Given the structure of some of the
settlements in CT and RI where we can bill for several more years, that should probably be 4 years from now.”
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Docket Number 1984CV01946
Accordingly, where Murphy has breached the Side Agreement, and Richard has not,
Richard’s motion for summary judgment on Counts 2 and 6 of the counterclaim, which allege
Richard’s breach of the Side Agreement due date and a related breach of the covenant of good
faith and fair dealing, are also ALLOWED.
B. Alleged Freeze-Out and Favoritism |1
The counterclaim alleges that Richard and Rachel breached the Partnership Agreement,
and the fiduciary duties owed to Murphy, when Richard made a capital contribution, on behalf of
Rachel and conspired with Rachel to freeze Murphy out by reducing him to a minority partner,
thereby changing the constitution of the firm, and conditioning Murphy’s future atthe firm on
his agreement to be an “of counsel” attorney. The counterclaim asserts the following claims
incorporating these allegations: breach of the Partnership Agreement (Counts 1 and| 13); breach
of implied contract (Count 3); breach of fiduciary duty (Count 4); breach of the covenant of good
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faith and fair dealing (Counts 5 and 15); civil conspiracy (Count 7); conversion (Count 10), and
t
unjust enrichment (Count 18). 1
1. Breach of Partnership Agreement |
!
The unambiguous terms of the Partnership Agreement are silent on capital cbntribution
and on the procedure for the addition of new partners. Accordingly, whereMurphy’s allegations
of wrongdoing fall outside of its terms, no breach of the Partnership Agreement occurred. In
addition, where Rachel was not even a party to the Partnership Agreement, the cl: aim against her
for breach fails for that reason alone. The derivative breach of the covenant of good faith and
fair dealing counts fail in the absence of a breach of the agreement, North Am, Expositions Co,
'
Ltd, P’ship v. Corcoran, 452 Mass. 852, 869 (2009). Richard and Rachel’s motion for summary
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Docket Number 1984CV01946
judgment on Counts 1, 5, 13, and 15 are ALLOWED, while Murphy’s motion for partial
summary judgment on Counts 1 and 5 is DENDED.
2. Breach of Fiduciary Duty
“It is well settled that partners owe each other a fiduciary duty of the utmost good faith
and loyalty. As a fiduciary, a partner must consider his or her partners’ welfare! and refrain
i
from acting for purely private gain. Partners thus may not act out of avarice, expediency or
self interest in derogation of their duty of loyalty.” Meehan v. Shaughnessy, 404 Mass. 419.
433-34 (1989) (citations omitted); see Greenleaf Arms Realty Tr.I, |, LLC v. New Boston Fund,
dnc., 81 Mass. App. Ct. 282, 291 (2012). '
Here, the record, viewed generously in Murphy’s favor, contains sufficient circumstantial
evidence to overcome summary judgment on the issue of the fiduciary duties owed during the
dissolution and wind-down of Wulsin Murphy. See O’Connor v. Kadrmas, 96 Mass. App. Ct
273, 282 (2019) (holding that circumstantial evidence of self-dealing is sufficient to defeat
summary judgment motion). Emails from May through July 2015 from Richard and Rachel to
Murphy indicate that they sought to substantially change the structure of the firm to equalize pay
among Murphy, Rachel, and Seth, to Murphy’s potential disadvantage. A contemporaneous
email from Richard to Rachel and Seth indicates that Richard believed they had leverage in any
negotiation with Murphy based on the outstanding Guaranteed Amount owed. JA 110-114.
Despite Murphy’s agreement to make Rachel partner, the record does not elucidate|the details of
her partnership stake - i.e., her voting rights, etc. As for harm and damages, if sclf-dealing is
established, it becomes Richard and Rachel’s burden to prove that the transactions at issue were
t
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© Murphy also alleges that Richard breached his fiduciary duties by failing to disclose Rachel’s “academic
misdeeds.” Even if any misdeeds took place, notwithstanding an opposite finding by the BBO, the record utterly
fails to link Rachel’s law school career to any partnership-related unfairness to Murphy.
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Docket Number 1984CV01946
fair and did not harm Murphy. Tocei v. Tocci, 490 Mass, 1, 15 (2022) (quoting Meehan, 404
Mass. at 441). Richard and Rachel’s motions for summary judgment on Count 4, and the related
civil conspiracy claim, Count 7, are therefore DENIED. Because genuine issues of material fact
remain on these claims, Murphy’s partial motion for summary judgment on Count 4 is also
DENIED.’ |
’
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The breach of implied contract against Richard (Count 3) is premised on the same
allegations of breach of fiduciary duty raised in Counts 4 and 7. Where this claimis duplicative
of those properly pleaded claims, Richard motion for summary judgment on Count3 is
'
ALLOWED. '
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3. Unjust Enrichment Against Rachel
The unjust enrichment claim against Rachel (Count 18) is also premised on the same
allegations of breach of fiduciary duty raised in Counts 4 and 7, but refers toRachel asa
“purported” partner. It asserts that Rachel unjustly benefited from that new status, at Murphy's
'
expense.
“In order to recover for unjust enrichment, a plaintiff must prove that (1) he! conferred a
measurable benefit upon the defendant; (2) he reasonably expected compensation ftom the
defendant; and (3) the defendant accepted the benefit with the knowledge, actual on chargeable,
of the plaintiff's reasonable expectation.” Stewart Title Guar. Co. v. Kelly, 97Mass App. Ct.
325, 335 (2020). However, the counterclaim allegations and summary judgment record are
devoid of evidence that Murphy conferred any specific, measurable benefit upon Rachel in
relation to her partnership, for which he reasonably expected compensation in retuh, See
Tedeschi-Freij v. Percy Law Grp., P.C., 99 Mass. App. Ct. 772, 780 (2021). His reference to the
7 To the extent the doctrine of unclean hands applies to these two sole surviving claims, it is a matter to be addressed
at tial.
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Docket Number 1984CV01946
Partnership Agreement is also inapposite where Rachel was not a party to that agreement.
|
Accordingly, Rachel’s motion for summary judgment on Count 18 is ALLOWED. 8
4. Conversion. 1
‘
The claim for conversion likewise fails. Such a claim requires proof that the defendant
‘'
intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal
I
property to which he has no right of possession at the time. Grand Pac, Fin, Corp, v. Brauer.
57 Mass. App. Ct. 407, 412 (2003) (citation omitted), The counterclaim alleges only that
Richard improperly contributed funds to the partnership on behalf of Rachel — there is no
allegation that he took partnership funds to which he was not entitled, or over which he had no
right of possession, Richard’s motion for summary judgment on Count 10 is ALLOWED.
C. Rachel and Seth’s Salaries ::
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‘The remaining counts of the counterclaim assert claims arising from Murphy’s allegation
that he lost money that he otherwise would have received because Rachel and Seth|had above-
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market salaries, and Murphy lost compensable time by training them to do their jobs. The
counterclaim frames these claims as ones for: deceit and negligence misrepresentation against
Richard, concerning the representations he made about paying his family above-market salaries
(Counts 8 and 9); unjust enrichment and quantum meruit against Richard, concerning Murphiy’s
training Richard’s children (Counts 11 and 12); quantum meruit against Rachel based on her
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overpayment and Murphy’s training, and Murphy’s missed future income arising therefrom in
the form of future earned fees (Count 19), and quantum meruit against Wulsin Law based on
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Murphy’s expected future fees (Count 21), 5
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* Murphy also raises Rachel's alleged academic misdeeds in Count 18, asserting that her failure to disclose them
unjustly enriched her. Because no measurable benefit from Murphy to Rachel is alleged on these facts either, this
portion of the claim is equally meritless.
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Pocket Number 1984CV01946
Factually, none of the claims survive where the record indicates that Murphy agreed with
Richard about the expense of hiring Rachel and Seth, and the payment of theirsalaties and
bonuses. See, e.g., JA 364-365, 587-592, 783, 797, 845. That Murphy viewed Rachel's hiring
as an investment to the firm, JA 589, and later acknowledged his knowing agreement with their
employment, JA 797, defeats his present allegation that Richard somehow misled Him at the
time, On the quantum meruit/unjust enrichment claims, the record also fails to establish the
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specific, measurable benefit Murphy conferred for which he and the defendants reasonably
expected Murphy to be compensated in return. Salamon v. Terra, 394 Mass. 857, 359 (1985);
Tedeschi-Freij, 99 Mass. App. Ct, at 780; Finard & Co., LLC v, Sitt Asset Mgt., 79)Mass. App.
Ct. 226, 229 (2011), Bringing employees into a small business and training them to perform the
required work is a typical part of running a business, and one for which specific, extra
compensation is generally not expected. The motions for summary judgment on Counts 8, 9, 10,
II
11, 19, and 21 of the counterclaim are ALLOWED.” 1
‘
? Some of these claims also contain allegations that are duplicative of the breach of fiduciary duty claim, and which
may be pursued in the context of that claim. '
'
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Docket Number 1984CV01946
ORDER
For the foregoing reasons, Richard Wulsin’s motion for summary judgment on his
complaint is ALLOWED. The Wulsins and Wulsin Law’s motions for summary Judgment are
also ALLOWED on all remaining counts of the counterclaim, with the exception of Counts 4
and 7, concerning the fiduciary duties owed during the dissolution andwind-down ‘of Wulsin
Murphy. Richard Wulsin’s motion for summary judgment on those counts is accordingly
DENIED. Murphy’s motion for partial summary judgment is DENIED.
Dated: March 10, 2023
¢ Kazanjian
Justice of the Superior’ ‘ourt
:
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Docket Number 1984CV01946
EXHIBIT C
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Superior Court - Suffolk
Docket Number 1984CV01946
NOTIFY
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
No. 1984CV01946-BLS1
RICHARD L. WULSIN
ys.
MARK F. MURPHY
RACHEL WULSIN & another,! third-party defendants
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT.
Plaintiff Richard L. Wulsin (“Richard”) filed a one-count breach of contract action
against his former law partner, Mark F. Murphy (“Mark”), seeking to recover an unpaid debt
In response, Mark filed a counterclaim against Richard, Richard’s‘daughter, Rachel Wulsin
(“Rachel”), and the Wulsins’ new law firm, Wulsin Law, LLP (“Wulsin Law”), asserting
numerous claims relating to the dissolution of their prior law firm, Wulsin & Murphy LLP
(‘Wulsin Murphy”). In a Memorandum and Order dated March 10, 2023, the court allowed
summary judgment for Richard on his complaint, and on all counts of the counterclaim, except
Counts 4 and 7, concerning the fiduciary duties owed during the dissolution and wind-down of
Wulsin Murphy. The case was tried before the court on July 24, 25, and 26, 2023.
FINDINGS OF FACT
Preview
Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 19 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 1984CV01946 RICHARD L. WULSIN, ESQ., Plaintiff, Vv. MARK F. MURPHY, ESQ., Defendant. NOTICE OF APPEAL The defendant Mark F. Murphy, Esq. (“Murphy”) hereby serves notice of appeal in the above-captioned matter pursuant to Mass. R. App. P. 3(a). Murphy appeals the following: (1) The Order dated December 5, 2019, with notice sent on December 17, 2019, allowing the Motion to Dismiss of Rachel A. Wulsin, attached hereto as Exhibit A. (2) The Memorandum of Decision and Order on Cross Motions for Summary Judgment dated March 10, 2023, with notice sent March 15, 2023, attached hereto as Exhibit B (Docket #52). (3) The Findings of Fact, Rulings of Law, and Order for Judgment dated November 1, 2023, with notice sent November 9, 2023, attached hereto as Exhibit C (Docket #70); and (4) The Judgment entered on the docket on February 2, 2024, attached hereto as Exhibit D (Docket #78). MARK F. MURPHY, ESQ., By his Attorneys, /s/ David C. Aisenberg David C. Aisenberg, BBO #545895 Looney Cohen & Aisenberg LLP 33 Broad Street, 5" Floor Boston, MA 02109 Tel: (617) 371-1050 Fax: (617) 371-1051 Email: daisenberg(@\ea-llp.com Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 CERTIFICATE OF SERVICE I, David C. Aisenberg, hereby certify that on February 20, 2024, a true and correct copy of the foregoing document was served on all parties or counsel of record via electronic mail and the ECF system. Christian G. Samito, Esq. (BBO#639825) Samito Law, LLC 15 Broad Street, Suite 800 Boston, MA 02109 christian@samitolaw.com Jeffrey D. Ugino, Esq. (BBO#660353) Gelerman and Cabral, LLC 30 Walpole Street Norwood, MA 02062 jugino@gelermancabral.con /s/ David C. Aisenberg David C. Aisenberg Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 EXHIBIT A Date Filed 2/20/2024 11:51 AM \in 0F-DU ‘Notty Supétior Coutk- Suffoll Docket Number resacy pied S ‘- § aS “ COMMONWEALTH OF MASSACHUSETTS tig < 2 at £ , mi SUFFOLK, ss NonGeg SUFFOLK SUPERIOR COURT 12 TAQ x ) “SL, RICHARD L. WULSIN, Go: fen Mg 7 GbC/RAG, ION. i Plaintiff, ) Civil Action No.: 1984CV01946 -BAS~ as tS 3 me ) (se) ¢ = wn Ae 33 MARK F. MURPHY, Rx 2S ei? S wN me pa! SS “a <7 DSR on zo Defendant. Se gg SSSCSCSCSCSs—S uy So Oo; SQ Aa x ok M LOTION TO DISMISS BY RACHEL A. WULSIN AND WULSINEAUELLES =o y re Pursuant to Mass. R. Civ. P 12(b)(6), Rachel A. Wulsin and Wulsin Laue mS ba woke m 5 4 a respectfully move that the Court disrhiss with prejudice the counterclaims against them as they Be x Sf g a & re zB ¥zyVet£ 3 £ $& € fail to state a claim upon which relief can be granted. As shown in the accompanying et memorandum of law served along with this motion, the counterclaims do not suggest a plausible al? = ¢ s te xo ett entitlement to relief, many of them are time-barred by the applicable statute of limitations, and ay aE a ‘ g 3 $ e Rachel A. Wulsin and Wulsin Law, LLP, are not proper counterclaim or third-party defendants. X 2 Hy £ aa £ -{ WHEREFORE, Rachel A. Wulsin and Wulsin Law, LLP respectfully move the Court to wes BS 5 is ne ns sea LS ciamias Mark F. Murphy’s claims against them in their entirety and with prejudice for the ind Ss i & Ns { reasons presented in the accompanying memorandum of law. xa a4 y® 4 6 ~ Ss x v he wee Date Filed 2/20/2024 11:51 AM Superfor Courts Suffolk Docket Number 1984CV01946 > ™ Respectfully submitted, RACHEL A. WULSIN and WULSIN LAW, LLP, By their Attorney, A. L~ Christian G, Samito, BBO# 639825 Samito Law, LLC 15 Broad Street, Suite 800 Boston, MA 02109 (617) 523-0144 (telephone) Christian@samitolaw.com Dated: August16, 2019 SUPERIOR COURT RULE 9C CERTIFICATION I, Christian G. Samito, hereby certify that counsel for the parties conferred by telephone on August 16, 2019, but could not narrow the issues presented by this Motion. UALS Christian G. Samito CERTIFICATE OF SERVICE J, Christian G. Samito, hereby certify that a true and accurate copy of the foregoing document was served on August 16, 2019, to all counsel of record via email per agreement between counsel. An We Christian G. Samito Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 EXHIBIT B OL Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 NOTIFY x \ae COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 1984CV01946-BLS1 RICHARD L. WULSIN ys. MARK F. MURPHY RACHEL WULSIN.& another, third-party defendants MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT Plaintiff Richard L. Wulsin (“Richard”)? filed a one-count breach of contract action against his former law partner, Mark F. Murphy (“Murphy”), seeking to recover an unpaid debt. In response, Murphy filed a counterclaim against Richard, Richard’s daughter, Rachel Wulsin Rachel”) (collectively, “Wulsins”), and the Wulsins’ new law firm, Wulsin Law, LLP (“Wulsin Law”), asserting numerous claims relating to the dissolution of the prior haw firm. Presently before the court are the parties’ cross motions for summary judgment on [both the complaint and counterclaim. Following a hearing on October 12, 2022, and consideration of the arguments and submitted material, the motions are ALLOWED in part and DENIED in part. BACKGROUND The summary judgment record sets forth the following facts, with furtherfacts reserved for later discussion. In 2005, Richard and Murphy entered into a law partnership, Wulsin & Murphy LLP, specializing in property tax appeals (“Wulsin Murphy”). On February 1, 2005, they signed two agreements: a Partnership Agreement and a Side Agreement. The}single-page Partnership Agreement defined how fees would be allocated, stated that “Neither partner shall |Ir ' Wulsin Law, LLP. . 1 ? Because the case involves several Wulsin family members, the court refers to them by their first names. 1 of NR Date Filed 2/20/2024 11:51 AM Superior Court,- Suffolk Docket Number 1984CV01946 incur any obligation in the name of the partnership without the prior consent of the‘other partner,” and provided for at-will termination of the partnership upon thirty days written notice. The Side Agreement provided Murphy a guaranteed income during the first two years of the partnership ($175,000 the first year and $190,000 the second), even if the fees towhich he was entitled during those two years were less that those amounts. The Side Agreement stated that Murphy “will repay the guaranteed payment amount(s) without interest through a reallocation of partnership fees or by direct payment in future years, but in any event no later than December 31, 2015.” In 2007, Murphy owed $123,170.03 under the Side Agreement, a sum the parties referred to as the “Guaranteed Amount.” 1 In 2007, Wulsin Murphy added three new employees: Rachel; Richard’s son, Seth Wulsin (“Seth”); and Richard’s sister, Anne Wulsin. Richard and Murphy agreed to equally divide the expense of the new employees. In 2008, Richard and Murphy agreed to pawally divide all Wulsin Murphy expenses, At the end of 2008, Murphy drew $162,563.45 more than his earned share, adding significantly to the Guaranteed Amount. By 2010, the undisputed amount owed was $308,824.16. Beginning in 2010, Richard and Murphy agreed to each take a $250,000 yearly draw in compensation. At some point, they also operated as if, and agreed that, each had made a $100,000 capital contribution to Wulsin Murphy. The Partnership Agreement contains no provisions regarding capital contribution, In 2010, Rachel began attending law school while i still working at Wulsin Murphy; she graduated and was admitted to the bar in 2014, Thereafter, ° t she continued working at Wulsin Murphy. | In May 2015, Richard and Murphy agreed to make Rachel a partner in Walsin Murphy, and agreed that she would receive a draw of the firm’s earnings rather than a salary. At some point in the weeks thereafter, Richard made a $40,000 capital contribution to Wulsin Murphy on ' Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk DocketNumber 1984CV01946 Rachel’s behalf. In an August 2015 email, Murphy acknowledged the capital sontrpbution, but disputed the total capital contribution from the three partners as being $200,000 rather than. $240,000, | ! Meanwhile, in June 2014, Richard began an email correspondence withMurphy about the future of Wulsin Murphy, in which he discussed his “hope” that Murphy, Rachel, and Seth would take over the firm as he entered retirement? JA 88-89. About a year later,in April 2015, Richard again broached the subject of retirement and the future of Wulsin Murphy in an email correspondence with Murphy, Rachel, and Seth. As the discussions among the parties progressed, and with Rachel now a partner, an of counsel position was proposed for Murphy. Murphy ultimately rejected that proposal and decided to leave the firm. To that end, on July 21, 2015, he wrote in an email to Richard, Seth, and Rachel: “I have reached the conclusion that the best alternative is to dissolve the firm and go our separate ways.” JA 100. Murphy stated inthe email that he planned to start his own practice on September 1, 2015. ‘In the same email, Murphy acknowledged the outstanding Guaranteed Amount. Over the next several months, {the parties wound down Wulsin Murphy and allocated clients among Richard, Rachel, and Murphy. Richard, Rachel, and Seth thereafter began operating as Wulsin Law. | On January 3, 2016, Richard sent Murphy a written demand for the outstanding $308,824.16 Guaranteed Amount. Murphy responded in writing with a draft complaint, and suggested Richard consider the impact litigation would have on his family. Murphy referred to files he found on shared Wulsin Murphy folders that showed Richard had edited and assisted 1 Rachel with some law school assignments. Murphy suggested he and Richard execute mutual 11 ‘ > Richard wrote: “It’s my hope that as I fade into the horizon, you, Seth and Rachel will be the nucleus of the firm and that, at some point, the three of you will share the net income. On the other hand, Rachel may decide to have a family and only work part-time. Things change notwithstanding my hopes. And my hopes are just that, my hopes.” JA 89, : I 3 Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 releases, On June 1, 2016, Murphy’s attorney sent Richard an emai! further discussing what Murphy considered “fraudulent academic collaboration.” A later complaint to the Board of Bar Overseers (“BBO”) resulted in an investigation with no finding of any ethical violation. On June 18, 2019, Richard commenced the present action seeking repayment of the Guaranteed Amount. On July 31, 2019, Murphy filedhis answer and twenty-one count counterclaim, in which he asserts multiple claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and quantum meruit. The counterclaim also brings claims for breach of fiduciary duty, civil conspiracy, deceit, negligent i misrepresentation, and conversion. Richard presently moves for summary judgment on his complaint and the counterclaim actions against him, while Rachel and Wulsin Law move for summary judgment on the counterclaim counts against them. Murphy moves for partial summary judgment on Counts 1, 4, and 5 of his counterclaim.* STANDARD OF REVIEW ~ To prevail on a motion for summary judgment, the moving party bears the burden of *“show[ing] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” based on the undisputed facts, Mass. R. Giv. P, 56(c). See Augat, Inc. v, Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In considering a motion for summary judgment, the court views the evidence and draws all reasonable inferences in the light most favorable to the nonmoving party. Currier v. National Ba. of‘Med. Examiners, 462 Mass. 1, 11 (2012). Where, as here, the court is presented with cross motions for summary judgment, the standard of review is identical for all motions. Epstein v. Board of Appeals of. Bbston, T7 Mass. App. Ct. 752, 756 (2010). 1 4 Counts 14, 16, 17, and 20 of the Counterclaim already have been dismissed. See endorsement onDocket No. 12. 4 Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Pocket Number 1984CV01946 DISCUSSION | As noted, the complaint is limited to a breach of contract action seeking the pnpeid Guaranteed Amount. The counterclaim counts largely attack the Wulsins’ partnership conduct, and include allegations that: 1) an amendment to the Side Agreement delayed its due date; 2) Richard committed wrongdoing in freezing Murphy out of the partnership and showing favoritism toward his children in the running of Wulsin Murphy; and 3) Richard’s family members were paid above market salaries at Murphy’s expense. Each subject area and its related ; i claims are addressed below. | A. Guaranteed Amount under the Side Agreement Richard’s motion for summary judgment on his complaint is ALLOWED. {The Side Agreement unambiguously states that any amount owed must be paid by December 31, 201 5. Murphy admits that he has paid nothing on the undisputed Guaranteed Amount owed, ‘' $308,824.16. i Contrary to Murphy’s argument, no language in the June 19, 2014, string ofiemails provides for an extension of that due date — including the sentence “Over the next five to ten years, as I slow down, I will draw less.” — which concerns Richard’s retirement, not the Guaranteed Amount. Indeed, Murphy’s later July 2015 proposal to extend the due date, see JA 99, is evidence that no agreement had been reached about an extension the year before.’ Neither | is there any evidence in the record, or in the language of the Partnership Agreement! or the Side ‘ Agreement, establishing that they are somehow incorporated into each other as asingle agreement, or even if that were true, how that fact would somehow extend the due date. 5 Murphy wrote on July 8, 2015: “We should extend the deadline for payment of the Guaranteed Amount to a period of time afier we expect to be paid on the last Wulsin Murphy receivable. Given the structure of some of the settlements in CT and RI where we can bill for several more years, that should probably be 4 years from now.” 5 Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 Accordingly, where Murphy has breached the Side Agreement, and Richard has not, Richard’s motion for summary judgment on Counts 2 and 6 of the counterclaim, which allege Richard’s breach of the Side Agreement due date and a related breach of the covenant of good faith and fair dealing, are also ALLOWED. B. Alleged Freeze-Out and Favoritism |1 The counterclaim alleges that Richard and Rachel breached the Partnership Agreement, and the fiduciary duties owed to Murphy, when Richard made a capital contribution, on behalf of Rachel and conspired with Rachel to freeze Murphy out by reducing him to a minority partner, thereby changing the constitution of the firm, and conditioning Murphy’s future atthe firm on his agreement to be an “of counsel” attorney. The counterclaim asserts the following claims incorporating these allegations: breach of the Partnership Agreement (Counts 1 and| 13); breach of implied contract (Count 3); breach of fiduciary duty (Count 4); breach of the covenant of good ' faith and fair dealing (Counts 5 and 15); civil conspiracy (Count 7); conversion (Count 10), and t unjust enrichment (Count 18). 1 1. Breach of Partnership Agreement | ! The unambiguous terms of the Partnership Agreement are silent on capital cbntribution and on the procedure for the addition of new partners. Accordingly, whereMurphy’s allegations of wrongdoing fall outside of its terms, no breach of the Partnership Agreement occurred. In addition, where Rachel was not even a party to the Partnership Agreement, the cl: aim against her for breach fails for that reason alone. The derivative breach of the covenant of good faith and fair dealing counts fail in the absence of a breach of the agreement, North Am, Expositions Co, ' Ltd, P’ship v. Corcoran, 452 Mass. 852, 869 (2009). Richard and Rachel’s motion for summary Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 judgment on Counts 1, 5, 13, and 15 are ALLOWED, while Murphy’s motion for partial summary judgment on Counts 1 and 5 is DENDED. 2. Breach of Fiduciary Duty “It is well settled that partners owe each other a fiduciary duty of the utmost good faith and loyalty. As a fiduciary, a partner must consider his or her partners’ welfare! and refrain i from acting for purely private gain. Partners thus may not act out of avarice, expediency or self interest in derogation of their duty of loyalty.” Meehan v. Shaughnessy, 404 Mass. 419. 433-34 (1989) (citations omitted); see Greenleaf Arms Realty Tr.I, |, LLC v. New Boston Fund, dnc., 81 Mass. App. Ct. 282, 291 (2012). ' Here, the record, viewed generously in Murphy’s favor, contains sufficient circumstantial evidence to overcome summary judgment on the issue of the fiduciary duties owed during the dissolution and wind-down of Wulsin Murphy. See O’Connor v. Kadrmas, 96 Mass. App. Ct 273, 282 (2019) (holding that circumstantial evidence of self-dealing is sufficient to defeat summary judgment motion). Emails from May through July 2015 from Richard and Rachel to Murphy indicate that they sought to substantially change the structure of the firm to equalize pay among Murphy, Rachel, and Seth, to Murphy’s potential disadvantage. A contemporaneous email from Richard to Rachel and Seth indicates that Richard believed they had leverage in any negotiation with Murphy based on the outstanding Guaranteed Amount owed. JA 110-114. Despite Murphy’s agreement to make Rachel partner, the record does not elucidate|the details of her partnership stake - i.e., her voting rights, etc. As for harm and damages, if sclf-dealing is established, it becomes Richard and Rachel’s burden to prove that the transactions at issue were t | © Murphy also alleges that Richard breached his fiduciary duties by failing to disclose Rachel’s “academic misdeeds.” Even if any misdeeds took place, notwithstanding an opposite finding by the BBO, the record utterly fails to link Rachel’s law school career to any partnership-related unfairness to Murphy. 7 Date Filed 2/20/2024 11:51 AM Superior Court,- Suffolk Docket Number 1984CV01946 fair and did not harm Murphy. Tocei v. Tocci, 490 Mass, 1, 15 (2022) (quoting Meehan, 404 Mass. at 441). Richard and Rachel’s motions for summary judgment on Count 4, and the related civil conspiracy claim, Count 7, are therefore DENIED. Because genuine issues of material fact remain on these claims, Murphy’s partial motion for summary judgment on Count 4 is also DENIED.’ | ’ | The breach of implied contract against Richard (Count 3) is premised on the same allegations of breach of fiduciary duty raised in Counts 4 and 7. Where this claimis duplicative of those properly pleaded claims, Richard motion for summary judgment on Count3 is ' ALLOWED. ' | i 3. Unjust Enrichment Against Rachel The unjust enrichment claim against Rachel (Count 18) is also premised on the same allegations of breach of fiduciary duty raised in Counts 4 and 7, but refers toRachel asa “purported” partner. It asserts that Rachel unjustly benefited from that new status, at Murphy's ' expense. “In order to recover for unjust enrichment, a plaintiff must prove that (1) he! conferred a measurable benefit upon the defendant; (2) he reasonably expected compensation ftom the defendant; and (3) the defendant accepted the benefit with the knowledge, actual on chargeable, of the plaintiff's reasonable expectation.” Stewart Title Guar. Co. v. Kelly, 97Mass App. Ct. 325, 335 (2020). However, the counterclaim allegations and summary judgment record are devoid of evidence that Murphy conferred any specific, measurable benefit upon Rachel in relation to her partnership, for which he reasonably expected compensation in retuh, See Tedeschi-Freij v. Percy Law Grp., P.C., 99 Mass. App. Ct. 772, 780 (2021). His reference to the 7 To the extent the doctrine of unclean hands applies to these two sole surviving claims, it is a matter to be addressed at tial. 8 Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 Partnership Agreement is also inapposite where Rachel was not a party to that agreement. | Accordingly, Rachel’s motion for summary judgment on Count 18 is ALLOWED. 8 4. Conversion. 1 ‘ The claim for conversion likewise fails. Such a claim requires proof that the defendant ‘' intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal I property to which he has no right of possession at the time. Grand Pac, Fin, Corp, v. Brauer. 57 Mass. App. Ct. 407, 412 (2003) (citation omitted), The counterclaim alleges only that Richard improperly contributed funds to the partnership on behalf of Rachel — there is no allegation that he took partnership funds to which he was not entitled, or over which he had no right of possession, Richard’s motion for summary judgment on Count 10 is ALLOWED. C. Rachel and Seth’s Salaries :: | ‘The remaining counts of the counterclaim assert claims arising from Murphy’s allegation that he lost money that he otherwise would have received because Rachel and Seth|had above- ' market salaries, and Murphy lost compensable time by training them to do their jobs. The counterclaim frames these claims as ones for: deceit and negligence misrepresentation against Richard, concerning the representations he made about paying his family above-market salaries (Counts 8 and 9); unjust enrichment and quantum meruit against Richard, concerning Murphiy’s training Richard’s children (Counts 11 and 12); quantum meruit against Rachel based on her | overpayment and Murphy’s training, and Murphy’s missed future income arising therefrom in the form of future earned fees (Count 19), and quantum meruit against Wulsin Law based on i Murphy’s expected future fees (Count 21), 5 ! * Murphy also raises Rachel's alleged academic misdeeds in Count 18, asserting that her failure to disclose them unjustly enriched her. Because no measurable benefit from Murphy to Rachel is alleged on these facts either, this portion of the claim is equally meritless. 9 Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Pocket Number 1984CV01946 Factually, none of the claims survive where the record indicates that Murphy agreed with Richard about the expense of hiring Rachel and Seth, and the payment of theirsalaties and bonuses. See, e.g., JA 364-365, 587-592, 783, 797, 845. That Murphy viewed Rachel's hiring as an investment to the firm, JA 589, and later acknowledged his knowing agreement with their employment, JA 797, defeats his present allegation that Richard somehow misled Him at the time, On the quantum meruit/unjust enrichment claims, the record also fails to establish the ' specific, measurable benefit Murphy conferred for which he and the defendants reasonably expected Murphy to be compensated in return. Salamon v. Terra, 394 Mass. 857, 359 (1985); Tedeschi-Freij, 99 Mass. App. Ct, at 780; Finard & Co., LLC v, Sitt Asset Mgt., 79)Mass. App. Ct. 226, 229 (2011), Bringing employees into a small business and training them to perform the required work is a typical part of running a business, and one for which specific, extra compensation is generally not expected. The motions for summary judgment on Counts 8, 9, 10, II 11, 19, and 21 of the counterclaim are ALLOWED.” 1 ‘ ? Some of these claims also contain allegations that are duplicative of the breach of fiduciary duty claim, and which may be pursued in the context of that claim. ' ' 10 Date Filed 2/20/2024 11:51 AM Superior Court- Suffolk Docket Number 1984CV01946 ORDER For the foregoing reasons, Richard Wulsin’s motion for summary judgment on his complaint is ALLOWED. The Wulsins and Wulsin Law’s motions for summary Judgment are also ALLOWED on all remaining counts of the counterclaim, with the exception of Counts 4 and 7, concerning the fiduciary duties owed during the dissolution andwind-down ‘of Wulsin Murphy. Richard Wulsin’s motion for summary judgment on those counts is accordingly DENIED. Murphy’s motion for partial summary judgment is DENIED. Dated: March 10, 2023 ¢ Kazanjian Justice of the Superior’ ‘ourt : 11 Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 EXHIBIT C Date Filed 2/20/2024 11:51 AM Superior Court - Suffolk Docket Number 1984CV01946 NOTIFY COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 1984CV01946-BLS1 RICHARD L. WULSIN ys. MARK F. MURPHY RACHEL WULSIN & another,! third-party defendants FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT. Plaintiff Richard L. Wulsin (“Richard”) filed a one-count breach of contract action against his former law partner, Mark F. Murphy (“Mark”), seeking to recover an unpaid debt In response, Mark filed a counterclaim against Richard, Richard’s‘daughter, Rachel Wulsin (“Rachel”), and the Wulsins’ new law firm, Wulsin Law, LLP (“Wulsin Law”), asserting numerous claims relating to the dissolution of their prior law firm, Wulsin & Murphy LLP (‘Wulsin Murphy”). In a Memorandum and Order dated March 10, 2023, the court allowed summary judgment for Richard on his complaint, and on all counts of the counterclaim, except Counts 4 and 7, concerning the fiduciary duties owed during the dissolution and wind-down of Wulsin Murphy. The case was tried before the court on July 24, 25, and 26, 2023. FINDINGS OF FACT