Family Matters: Cesso, Thomas vs. Todd, Gary Owen

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COMMONWEALTH OF MASSACHUSETTS _——

ESSEX, SS. SUPERIOR COURT
CIVIL ACTION
No. 2011-02146-A
THOMAS CESSO
¥s.
JOHN EARL QUIGLEY & others!
MEMORANDUM OF DECISION AND ORDER ON TODD’S
MOTION FOR SUMMARY JUDGMENT
INTRODUCTION

The plaintiff, Thomas Cesso (“Cesso”), was involved in proceedings before the Essex
Probate and Family Court (the “Probate Court”) in connection with his divorce from his former
spouse, Cheryl Cesso (“Cheryl”). Following the divorce proceedings, he filed the Complaint in
this matter, asserting various malpractice-related claims against John Earl Quigley (“Quigley”)
and The Law Office of John E. Quigley, P.C. (“Quigley PC”), which he alleged arose out of
Quigley’s representation of him during his divorce. Quigley defaulted and Cesso filed the
Amended Complaint, adding claims for legal malpractice and misrepresentation against Gary
Owen Todd (“Todd”). Some months later, the court (Feeley, J.) allowed summary judgment in
Todd’s favor on Cesso’s claims. Cesso appealed the court’s summary judgment ruling and, the
“ Appeals Court affirmed the dismissal of the misrepresentation claim and vacated summary
judgment as to the legal malpractice claim. This matter is now before the court on Todd’s

second Motion for Summary Judgment (Paper #88), wherein he again secks summary judgment

' The Law Office of John E. Quigley, P.C. and Gary Owen Toddin his favor on Cesso’s claim for legal malpractice. For the reasons stated herein, the Motion for
Summary Judgment will be DENIED.
BACKGROUND AND DISCUSSION

Cesso filed the Complaint on November 16, 2011. Therein, he named only Quigley and
Quigley PC as defendants, asserting claims for legal malpractice that arose of Quigley’s
representation of Cesso during a fiercely contested divorce action that took place in the Probate
Court between him and his former wife, Cheryl. Cesso v. Cesso, Docket No. 06-D-01978.
According to the Complaint, the divorce action began on September 8, 2008 and concluded, after
the close of evidence, in March 2009, with the Probate Court ruled against Cesso, in its
Judgement of Divorce on May 22, 2009, on child custody and asset division issues, as a result of
Quigley’s negligent representation. On February 13, 2012, Quigley and Quigley PC were
defaulted for failure to answer.

In November 2012, Cesso filed the Amended Complaint, retaining the claims he
previously asserted against Quigley and Quigley PC and adding claims against Todd for
misrepresentation and negligence/malpractice. Therein, Cesso alleged that he retained Todd to
represent him in the divorce action in early July 2008, and that Todd and Quigley, then a
member of the firm Todd & Weld, both filed appearances in the divorce action on July 9, 2008.
Cesso stated Todd told him Quigley would assist with the divorce action, as he was an
experienced trial attorney familiar with divorce and custody matters. But that, thereafter, upon
Quigley’s departure from Todd & Weld a few weeks later, Todd transferred his case to Quigley,
who had then set up his own practice. According to Cesso, he agreed to the transfer of his case

because it was his understanding Todd would continue to work on the matter and oversee thelitigation and participate in the trial. Despite these claims, Cesso acknowledged Todd filed a
notice of withdrawal with the Probate Court on July 28, 2008.

In the Amended Complaint, Cesso alleged Quigley/Todd directed a private investigator’s
video surveillance of Cheryl, obtaining important trial evidence, but allowed the investigator’s
bills to mount to excessive levels. This, Cesso claims, resulted in the Probate Court penalizing
him for committing marital waste, increasing the marital assets subject to division between him
and Chery] by the amount spent on the investigator, 45% which went to Cheryl. And then,
Quigley/Todd failed to even offer the video surveillance into evidence during the divorce
proceeding. Cesso alleged he told Quigley/Todd that the financial statement filed on the first day
of trial overstated his financial condition by the end of trial, due to expenses related to the
divorce and various investment losses, but Quigley/Todd never provided the court with an
updated financial statement and thus, the division of marital assets was based on a marital estate
that was overstated by several hundred thousand dollars.”

After a lengthy discovery period, Todd filed the Motion for Summary Judgment.
Therein, Todd argued he was entitled to judgment as a matter of law on both Cesso’s claims
because: (1) he did not represent Cesso when the alleged malpractice occurred and thus, Cesso
could not prove he caused him (Cesso) any harm; and (2) there was no evidence he ever made a
false statement of fact upon which Cesso relied. In opposing summary judgment, Cesso argued
there were disputed issues of material fact regarding whether an attorney-client relationship
existed between Cesso and Todd when mistakes were made. According to Cesso, he remained

Todd’s client throughout the divorce litigation because Todd never properly withdrew from

? All of the allegations of professional misconduct identified in the Amended Complaint are phrased as having been
committed by “Quigley and/or Quigley, P.C. and/or Todd.”

3tepresenting him. The court (Feeley, J.) allowed Todd’s request for summary judgment via
written decision dated October 19, 2015, concluding that Todd ceased representing Cesso on
July 25, 2008, when Quigley left Todd & Weld and took, with Cesso’s authorization, the divorce
case with him to his new practice and, that there were no actionable misrepresentations.

Cesso appealed and the Appeals Court affirmed summary judgment on Cesso’s claim for
misrepresentation and vacated summary judgment with respect to his claim for negligence/
malpractice. Cesso v. Todd, 92 Mass. App. Ct. 131, 135-138, 139 (2017). In doing so, the Court
established the parameters for the attorney-client relationship between Cesso and Todd. First,
the Court concluded that, because reasonable minds could differ as to whether an attorney-client
relationship existed at all between Cesso and Todd after July 28, 2008, the issue needed to be
resolved by the trier of fact. Jd. at 136, citing DeVaux v. American Home Assur. Co., 387 Mass.
814, 817-818 (1983).

Second, the Court ruled that, as a matter of law, to the extent any attorney-client
relationship did exist between Cesso and Todd after July 28, 2008, it “ended no later than
September 12, 2008,” since, at that point, Cesso “knew Todd was not appearing at trial, knew
Todd was not responding to any direction or communication from [him], and [he (Cesso) had]
asked Todd & Weld to transfer the remaining [balance of his] retainer to Quigley.” Jd. at 137.
According to the Court, given these facts, after September 12, 2008, “Cesso could not have
reasonably expected to continue to receive legal services from Todd.” Jd.

Next, the Appeals Court concluded “no legal malpractice claim [could] lie against Todd

as a matter of law for the conduct of the trial” as “Cesso knew Todd was not trying the case.” Jd.

> July 28, 2008 represents the date Todd’s notice of withdrawal was filed with the Probate Court. Cesso, 92 Mass.
App. Ct. at 135.at 137-138. And that, no malpractice claim could lie against Todd based on court filings
submitted after July 28, 2008 “as Todd had withdrawn from the matter and Quigley, as the
attorney of record, was responsible for these filings.” Jd. at 138. As to conduct occurring before
Todd’s notice of withdrawal, the Court noted that “the only malpractice Cesso allege[d] related
to conduct prior to July 28, 2008, [was] mismanagement of the private investigator.” Jd. at 138
n.12. On this point, the Appeals Court stated that “[e]ven if Todd merely continued the
surveillance set in motion by an earlier attorney, Cesso [was] still permitted to argue that that
level of surveillance was not within the standard of care.” Jd. at 138.

This matter is currently before the court on Todd’s second request for summary
judgment, wherein he seeks judgment, following the Appeals Court’s remand order, as a matter
of law, on Cesso’s claim for legal malpractice. In support, he argues that the doctrines of issue
preclusion and law of the case entitle him to judgment because this court is bound by findings
and decisions the Probate Court and Appeals Court made in connection with Cesso’s divorce
case. He also argues that any errors he committed were the result of non-actionable professional
judgment, not negligence/malpractice. The court remains unconvinced.

First, with respect to issue preclusion, as Cesso points out, there is no identity of issues
between the divorce action, which involved division of marital assets and custody matters and
the current matter, which involves a malpractice claim. See Matter of Cohen, 435 Mass. 7, 15

ae

(2001) (stating offensive collateral estoppel requires “‘an identity of issues, a finding adverse to
the party against whom it is being asserted, and a judgment by a court or tribunal of competent
jurisdiction”), quoting Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 (1992), citing Martin

v. Ring, 401 Mass. 59, 61 (1987).Next, as to the law of the case, which provides that once a final judgment is entered, the
court may not rule differently on an issue or a question of fact or law, Catalano v. First Essex
Sav. Bank, 37 Mass. App. Ct. 377, 384 (1994), quoting Goulet v. Whitin Mach. Works, Inc., 399
Mass. 547, 554 (1987), reflecting the reluctance to reconsider questions decided earlier in the
same case, Kitras v. Aquinnah, 474 Mass. 132, 146 (2016), there has been neither a final
judgment in this case nor an order dispositive of the present issues.

Moreover, the Appeals Court clearly concluded there were issues of fact concerning:
whether an attorney-client relationship existed between Cesso and Todd; when the attorney-
client relationship began, if it did exist; when the attorney-client relationship ended, if it did
exist, noting “a trier of fact could reasonably conclude that the relationship ended . . . even
before July 28, 2008”; and, what conduct of Todd’s actually amounted to malpractice. See
generally, Cesso, 92 Mass. App. Ct. at 135-139. At this juncture, it is not the trial court’s place
to question the Appeals Court’s conclusions—the identified issues of fact cannot be resolved by
this court on summary judgment; instead, these disputes must be resolved by the trier of fact.
Cesso is permitted to pursue his malpractice claim against Todd, to the extent the claim fits
within the parameters set by the Appeals Court.

CONCLUSION AND ORDER

Cesso may assert a malpractice claim against Todd “based on action or inaction by Todd
from the start of the attorney-client relationship to no later than September 12, 2008.” Id. at 138.
And, while the claim may be premised upon Todd’s alleged mismanagement of the investigator,
the claim “cannot be based on the trial of the divorce case or pleadings filed after July 28, 2008.”
dd. For this reason, it is hereby ORDERED that Todd’s Motion for Summary Judgment be

DENIED.Dated: April 20, 2018 Salim Rodriguez Tabit

Justice of the Superior Court