United States Court of Appeals
For the First Circuit
No. 06-1664
BARBARA CORDI-ALLEN; JOHN E. ALLEN,
Plaintiffs, Appellants,
v.
R. BARTLEY HALLORAN; R. BARTLEY HALLORAN, P.C.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Paul Revere III for appellants.
Kenneth D. Small, with whom Marissa I. Delinks and Hinshaw &
Culbertson LLP were on brief, for appellees.
November 22, 2006
STAHL, Senior Circuit Judge. This case arises out of the
breakdown in the relationship between plaintiffs-appellants Barbara
Cordi-Allen and John E. Allen, and their former attorney,
defendant-appellee R. Bartley Halloran. The Allens sued Halloran
in state court for breach of contract and breach of fiduciary duty,
and the case was subsequently removed to federal court on the basis
of diversity jurisdiction. The district court granted Halloran
summary judgment. The Allens appeal, and we affirm.
I. Background
In 1997, Barbara Cordi-Allen was injured in an elevator
accident at her place of employment, Weaver High School, in
Hartford, Connecticut. She received workers’ compensation for her
injury, but, seeking further compensation, she engaged Halloran to
represent her in a personal injury suit against Delta Elevator, the
elevator manufacturer, and in a suit against the City of Hartford
to increase her workers’ compensation. Halloran negotiated on
behalf of his client a settlement of $235,000 from Delta. As part
of the negotiated settlement, the City of Hartford agreed to
release its workers’ compensation lien against any third-party
payments, provided that Cordi-Allen also dismissed the workers’
compensation suit against the city. Cordi-Allen initially agreed
to the settlement, but at the last minute decided against
dismissing the workers’ compensation suit, believing that she would
net more if she pursued the suit and were found “totally disabled.”
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Halloran advised against this action, pointing out that
without a waiver of the workers’ compensation lien, the City of
Hartford, whose lien totaled nearly $200,000, would take the bulk
of the settlement. The Allens, for various reasons unclear on the
record, had begun to lose trust in Halloran and did not take his
advice. Accordingly, when the settlement arrived from Delta, the
funds went entirely to attorney fees, expenses, and repayment of
the workers’ compensation lien, leaving nothing for the Allens.
Despite the clear beginnings of a breakdown in their
relationship, Halloran agreed to continue to represent Cordi-Allen
in the workers’ compensation case. Indeed, on the settlement
statement with Delta, he wrote:
I, R. Bartley Halloran guarantee that no attorneys fee
payments will be paid or charged to Barbara Cordi-Allen
or John Allen. Barbara Cordi Allen [sic] and John Allen
are [and] will not be responsible for attorneys fees or
expenses for the workers comp. case.
It is this language that is partly at issue here.
The relationship continued to worsen, and after an
exchange of bitter email messages, Halloran finally asked the
Workers’ Compensation Commission (“WCC”) that he be allowed to
withdraw from further representation. The WCC granted the
withdrawal on July 17, 2001. Cordi-Allen appealed, but on January
30, 2002, the WCC affirmed Halloran’s withdrawal. Cordi-Allen
continued in her workers’ compensation case with another attorney,
and she was eventually awarded an additional $31,018.89.
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On December 21, 2004, the Allens began the initial action
in state court against Halloran on three counts. Count I was
entitled “Breach of Contract -- Settlement” and alleged that
Halloran had breached his contract with the Allens by taking his
attorneys fees prior to payment of the workers’ compensation lien,
rather than after it was paid. Count II was entitled “Breach of
Contract -- Failure to Represent” and alleged that Halloran’s
withdrawal from the workers’ compensation case was a breach of
contract which harmed the Allens by forcing them to pay for another
attorney. Count III was entitled “Breach of Fiduciary Duty” and
alleged various conflicts of interest.
The case was removed to federal court on April 5, 2005,
and Halloran moved for summary judgment on February 17, 2006. The
Allens did not file an opposition before the deadline of March 3,
2006, and the district judge granted summary judgment in a cursory
opinion on March 8, 2006.1 The Allens appealed the summary
judgment on all three counts, but conceded Count I at oral
argument. Therefore, we review summary judgment only as to Counts
II and III.
1
Plaintiffs’ counsel urges that he had good reason for his
failure to meet the deadline, since his house had recently burned
down, and defendant’s counsel had not sent certain documents back
to plaintiffs’ counsel as had been promised. These events likely
would have been sufficient for an extension of time, had plaintiff
asked for one. In any event, plaintiffs’ failure to respond to the
motion does not waive any legal issues, since the district judge is
still assumed, despite his sparse memorandum, to have decided the
case on the merits. See Fed. R. Civ. P. 56(e).
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II. Discussion
This case falls under the district court’s diversity
jurisdiction. 28 U.S.C. § 1332. The parties agree that
Connecticut law governs.
We review a district court's grant of summary judgment de
novo. Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97, 102
(1st Cir. 2003). In doing so, we will construe the record in the
light most favorable to the nonmovant and resolve all reasonable
inferences in that party's favor. Id.
The district judge’s memorandum and order does not
discuss his basis for issuing summary judgment on any of the
counts. However, even where a motion for summary judgment is
unopposed, a district judge is still bound to review the case on
the merits based on the uncontroverted facts before him, as are we.
Fed. R. Civ. P. 56(e); see Stonkus, 322 F.3d at 102.
The lack of reasoning by the district judge does not
limit us, since we are not bound by the district court’s rationale
(or lack thereof), but “may affirm the judgment on any ground
revealed by the record.” Iverson v. City of Boston, 452 F.3d 94,
98 (1st Cir. 2006). Because the motion for summary judgment went
unopposed, we review the case on the facts as set forth in the
defendant’s motion for summary judgment. D. Mass. Loc. R. 56.1;
see Stonkus, 322 F.3d at 102. Summary judgment is only appropriate
if the record shows that “there is no genuine issue as to any
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material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c).
Halloran’s motion for summary judgment argued that Count
II was merely a tort claim masquerading as a contract claim and was
thus barred by the three-year tort statute of limitations. See
Conn. Gen. Stat. § 52-577. The Allens argue on appeal that some
claims by a client against an attorney will be considered contract
actions under Connecticut law when they are based on specific
promises by the attorney, and thus are governed by the six-year
statute of limitations on contract actions. See Conn. Gen. Stat.
§ 52-576(a).
Halloran also posits that summary judgment was
appropriate on Count II because the Allens had not provided an
expert witness to testify as to the standard of care. See
Celentano v. Grudburg, 76 Conn. App. 119, 125-126, 818 A.2d 841,
846 (2003). The Allens argue on appeal that this is not the sort
of quasi-negligence contract action that would require such
testimony, since the action is simply a straightforward contract
claim based on the text of Halloran’s handwritten addendum.
We need not reach the issue of whether Count II sounds in
tort or contract, since even assuming, arguendo, that the
handwritten addendum is a contract, it is not subject to the
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interpretation that the Allens urge.2 As an initial matter, the
baseline attorney-client contract does not include a promise to see
a claim through to its conclusion under any circumstances. Id. at
845-46. Thus, the question is whether Halloran’s handwritten
addendum, if it is to be treated as an express contract, modified
the baseline attorney-client contract so as to remove Halloran’s
ability to withdraw. For that is essentially what the Allens
claim: that Halloran breached the contract by withdrawing, forcing
them to pay for a new lawyer.3
Any ability to withdraw is governed by the principles of
Connecticut Rule of Professional Conduct 1.16 (“Rule 1.16”), which
provides, inter alia, that an attorney may withdraw “for good
cause” even if doing so adversely affects the client. It was on
that basis that the WCC allowed Halloran’s withdrawal, citing the
breakdown of the attorney-client relationship. The Allens do not
claim a violation of Rule 1.16; indeed, they specifically state in
2
The issue here is one of the interpretation of text
purporting to be an express contract. This is a matter of law for
the court, and there are no disputed facts that bear on this issue.
3
The Allens are somewhat inconsistent in their brief,
sometimes seeming to argue that the breach was not in the
withdrawal but rather in the failure to pay for a replacement
attorney. Leaving aside the issue of whether those are actually
distinct theories, we note that the Allens’ complaint makes clear
that the alleged breach was in the “failure to represent” caused by
the withdrawal, with the replacement attorney’s fees as damages.
In any event, either theory fails because the addendum is not
reasonably read to be a promise by Halloran to pay for the costs of
replacement counsel should he withdraw.
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their brief that they are not alleging any violation of
professional standards. Appellants’ Brief at 18. Therefore, any
contract action must rest on the claim that Halloran’s handwritten
addendum was a promise not to withdraw even if withdrawal were
entirely appropriate under Rule 1.16.
Halloran’s addendum is simply a waiver of any additional
fees to be charged by him in the workers’ compensation case. We
see nothing in the language that could be read to overrule the
standards of Rule 1.16 and bind Halloran to the Allens in
perpetuity.4 The text is unambiguous on this issue. “Where the
language of the contract is clear and unambiguous, the contract is
to be given effect according to its terms. . . . Similarly, any
ambiguity in a contract must emanate from the language used in the
contract rather than from one party's subjective perception of the
terms.” Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599,
610-11, 849 A.2d 804, 812 (2004) (internal quotation marks
omitted). Therefore, a claim for breach of contract must fail.
Alternatively, if Count II were to be deemed a tort
claim, it would indeed fall outside the three-year statute of
limitations, since Halloran’s motion to withdraw was granted on
July 17, 2001, more than three years before the Allens filed their
4
The Allens argue that it was the distribution of the
settlement proceeds in a way beneficial to Halloran that anchored
such a promise. While that theory may answer the question of
consideration, it does not answer the question of what, precisely,
was promised.
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complaint on December 21, 2004. The Allens dispute this, arguing
that, under Connecticut’s continuous representation doctrine, the
statute was tolled while the initial order of withdrawal was
appealed. Halloran’s withdrawal was affirmed by the Review Board
of the WCC on January 30, 2002, which would bring the complaint
filing within the three-year limitations period under the Allens’
theory.
The Connecticut continuous representation doctrine states
that the statute of limitations for attorney malpractice will be
tolled
when the plaintiff can show: (1) that the defendant
continued to represent him with regard to the same
underlying matter; and (2) either that the plaintiff did
not know of the alleged malpractice or that the attorney
could still mitigate the harm allegedly caused by that
malpractice during the continued representation period.
DeLeo v. Nusbaum, 263 Conn. 588, 597, 821 A.2d 744, 749-50 (2003).
However, the representation ends, and thus the statute begins to
run, when, inter alia, “a court grants the attorney's motion to
withdraw from the representation.” Id. at 750. The rule tolls the
statute during representation because the client is likely to be
unaware of any harm. Id. at 748. But when the harm occurs at the
point of withdrawal, that concern is no longer present, and the
statute begins to run. Furthermore, the Allens appealed Halloran’s
withdrawal before the WCC, and thus were clearly aware of any harm
it might have caused.
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The same can be said of Count III. As an action for
breach of fiduciary duty, the same three-year tort statute of
limitations applies, Ahern v. Kappalumakkel, 97 Conn. App. 189,
191-92, 903 A.2d 266, 268 (2006), with the statute running from no
later than the date of withdrawal.
Accordingly, the district court properly granted summary
judgment.
Affirmed.
Costs to appellees.
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