USCA1 Opinion
September 11, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1135
CAMERON K. WEHRINGER,
Plaintiff, Appellant,
v.
POWER AND HALL, P.C.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Cameron K. Wehringer on brief pro se.
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Raymond J. Kenney Jr., Kevin C. Reidy and Martin, Magnuson,
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McCarthy & Kenney on brief for appellee.
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Per Curiam. Plaintiff-appellant, Cameron K.
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Wehringer, appeals pro se from the district court's dismissal
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pursuant to Fed. R. Civ. P. 12(b)(6) of his complaint,
"without prejudice to refiling, if, as a result of the
underlying lawsuit, plaintiff is able to state a claim for
legal malpractice." He also appeals from the denial of his
motion for partial summary judgment and from the district
court's failure to grant his motion for default judgment. We
affirm on the basis of the district court's well-reasoned
Memorandum and Order, dated January 5, 1994. We add only the
following few additional comments.
I. Dismissal for Failure to State a Claim
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The district court ruled that Wehringer's claim for
legal malpractice was premature in that it was filed before
the outcome in the underlying litigation (in which defendant-
appellant Powers & Hall, P.C. ("Powers") represented him) was
determined. The underlying case against four individuals who
allegedly tape recorded Wehringer's voice in violation of
state and federal wiretapping laws, is still pending in state
court. Powers was granted leave to withdraw from
representing Wehringer in the case on April 21, 1989. New
counsel entered an appearance on April 23, 1993. The
district court ruled that, even assuming negligence,
Wehringer could not demonstrate damages absent proof that he
probably would have succeeded in the underlying action. Such
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proof could not be offered until the underlying suit was
completed.
On appeal, Wehringer argues that even before the
outcome is known in the underlying case, he has suffered harm
as a result of Powers' negligence. The alleged harm is as
follows: 1) the inability to bring a new claim (now allegedly
barred by the statute of limitations) against Audrey
Brannigan, a defendant against whom all claims were
previously voluntarily dismissed; 2) Powers' billing of
Wehringer for time spent seeking to withdraw from the case,
forcing him to bring this lawsuit; and 3) legal fees paid to
counsel hired by Powers in April 1993, to represent him in
the underlying litigation. We address each allegation of
harm separately.
A. Claim Barred by Statute of Limitations
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Wehringer argues on appeal that as a result of
Powers' negligence in failing to even discuss with him the
feasibility of amending the complaint, he has forever lost
the opportunity to pursue a claim against Audrey Brannigan
("Brannigan"), as to which the statute of limitations
allegedly has run. This argument is doubly flawed. First,
it is not at all clear that the running of the statute of
limitations would bar the amendment of the complaint to add
Brannigan as a defendant. "Massachusetts has long had a
liberal policy allowing amendments which add or substitute
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parties after the statute of limitations has expired." Bengar
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v. Clark Equipment Co., 401 Mass. 554, 556 (1988); see Mass.
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R. Civ. P. 15(c); cf. Fed. R. Civ. P. 15(c). Wehringer has
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not alleged that he ever attempted to amend the complaint to
add the claim against Brannigan.
Second, even if Powers was negligent in failing to
amend the complaint prior to the running of the statute of
limitations, Wehringer has suffered no loss therefrom unless
the claim probably would have succeeded. Until the
underlying lawsuit is completed, Wehringer cannot offer such
proof. Therefore, the complaint fails to allege harm as the
proximate result of Powers' alleged negligence in failing to
amend the complaint.
B. Billing for Time Spent Seeking to Withdraw
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Wehringer has failed to allege harm in this respect
because in its answer to the complaint, Powers admitted that
Wehringer does not owe fees for time Powers spent seeking to
withdraw. Therefore, any potential claim of harm that may
have existed in this regard is now moot. Wehringer's
argument that he has suffered harm in the form of filing fees
and other costs of bringing this lawsuit solely to protect
against Powers' attempt to collect fees for time spent on
withdrawal is belied by the continuation of this lawsuit long
after that issue has become moot.
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C. Legal Fees Paid to Replacement Counsel
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This argument is raised for the first time on
appeal. The complaint does not allege that any legal costs
were incurred as a result of Powers' negligence. In
Wehringer's Opposition to Powers' Motion to Dismiss,
Wehringer stated that he couldn't afford to hire counsel in
the underlying case after Powers withdrew:
Lawyers are just too expensive, and
plaintiff is without the resources to
engage counsel. This is true in the
underlying case and in this federal case
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against Powers & Hall, P.C.
Appellant's Appendix, p. 62 (emphasis in original). Having
not presented his legal fees as harm argument below,
Wehringer cannot raise it for the first time on appeal. See
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National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 749
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(1st Cir.), cert. denied, __ U.S. __, 115 S. Ct. 2247 (1995).
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Even if we were to consider the claim of harm in
the form of legal fees, the argument has no merit. Under
Massachusetts law, a cause of action for legal malpractice
may accrue at the time that legal expenses are incurred as a
result of the alleged malpractice, notwithstanding that an
underlying action is still pending. See Levin v. Berley, 728
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F.2d 551, 554 (1st Cir. 1984) (applying Massachusetts law and
holding that legal malpractice cause of action against
attorney who drafted plaintiff's will accrued when plaintiff
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suffered harm in the form of additional legal fees incurred
to ameliorate harm caused by defendant attorney's error);
Cantu v. St. Paul Cos., 401 Mass. 53, 57 (1987) (legal
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malpractice cause of action accrued while underlying
litigation was still pending on appeal where plaintiff hired
attorney to advise him regarding personal financial exposure
resulting from defendant attorney's negligence in failing to
timely notify excess insurer of the underlying claim);
Massachusetts Elec. Co. v. Fletcher, Tilton & Whipple, P.C.,
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394 Mass. 265, 268 (1985) (cause of action accrued for legal
malpractice when plaintiffs incurred substantial legal
expenses in defense of a claim based in part on the negligent
conduct of their attorneys, notwithstanding that the
underlying litigation was still pending).
This case is distinguished from the cases cited
above, however, by the failure of Wehringer to allege that
legal expenses were incurred as the proximate result of
Powers' alleged negligence. After Powers' withdrawal,
Wehringer entered an appearance pro se. Replacement counsel
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did not enter an appearance in the underlying action until
April, 1993. In his reply brief, Wehringer argues that he
sustained harm in the form of legal fees paid to the counsel
he eventually hired to represent him in the underlying action
four years after Powers' withdrawal. This harm, however, is
not the result of Powers' alleged negligence. The legal fees
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for pursuit of the underlying litigation would have been
incurred by Wehringer even in the absence of any negligence
by Powers. Therefore, the district court did not err either
in dismissing the action without prejudice as premature or in
denying the appellant's motion for partial summary judgment.
II. Default Judgment
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The district court did not err in failing to grant
Wehringer's motion for default judgment on the ground that
Powers failed to file an answer to the complaint on time.
Wehringer served the summons and complaint on September 27,
1991. On October 17, 1991, Powers filed a motion to dismiss
for insufficiency of service of process. See Fed. R. Civ. P.
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12(b)(5). On February 14, 1992, Wehringer moved for default
judgment for failure to file an answer to the complaint on
time. At that moment, the district court had not yet ruled
on Powers' motion to dismiss and, therefore, the deadline for
filing an answer had not yet passed. See Fed. R. Civ. P.
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12(a)(4)(A) (service of motion under Fed. R. Civ. P. 12
postpones the deadline for filing an answer until 10 days
after notice of the court's action on the motion).
Wehringer argues that Powers' motion to dismiss was
denied "de facto" by the issuance of a discovery schedule on
January 9, 1992, by the magistrate judge to whom the case was
referred. As Wehringer freely admits, there is no legal
authority to support his argument. Therefore, the district
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court committed no error in failing to enter a default
judgment.
Accordingly, the district court's dismissal of this
action is affirmed.
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