The Complaint filed by the plaintiff in Young v. Sarah Alger, P.C., No. 10-11732, 2012 WL 5921050 (D. Mass. Nov. 27, 2012) (Zobel, J.), appeared to be barred by the statute of limitations. The U.S. District Court for the District of Massachusetts found, however, that the attorney’s attempts to “make the situation right” created an issue of fact concerning whether the continuing representation doctrine could save the plaintiff’s suit from being time-barred. Thus, the Court denied the attorney’s motion for summary judgment and ruled the action could proceed to trial.
The plaintiff, Douglas Young (“Young”), sued the professional corporation of Sarah Alger, P.C. and Sarah Alger (collectively, “Alger”) for legal malpractice. Alger represented Young in connection with Young’s purchase of real property at 21 Brewster Road, Nantucket, Massachusetts (the “Property”). The lots neighboring the property were owned by William and Deborah Tornovish. Young alleged Alger repeatedly told him the Tornovishes had no rights in the Property. Young closed on the Property on April 15, 2005.
Shortly after he purchased the Property, Young hired another attorney, Paul Jensen (“Jensen”), to help him subdivide it. At the same time, Young had several conversations with Tornovish in which Tornovish asserted he had a right-of-way over a part of the Property. Young admitted that by September of 2006, he understood Tornovish was claiming a right-of-way over the Property. On October 4 or 5, 2007, Jensen performed a title examination of the Property and found that Tornovish owned a right-of-way over the Property. Jensen told Young the results of the title examination in mid to late October of 2007.
After learning of the results of the title examination, Young contacted an attorney at Alger’s office. Young claims that Alger disagreed with Jensen’s assessment and continued to represent that no right-of-way existed in favor of Tornovish. Young claims Alger further stated she would “make the situation right.” Alger then represented Young in attempting to arrange a land swap with Tornovish to resolve the problem. The deal fell through and Alger ceased representing Young in early 2009. Because of the right-of-way, Young was not unable to subdivide the Property into five new lots, as he had planned. Instead, he was only able to subdivide the Property into three lots. Young sold two of those lots and retained the third.
Young filed his Complaint for legal malpractice on October 11, 2010. Alger moved for summary judgment on the grounds that the legal malpractice claim was barred by the three-year statute of limitations for legal malpractice actions under M.G.L. c. 260, §4. The Court ruled Young’s claim accrued when Tornovish notified him at least by September of 2006 that there was an easement on the Property. At that point, Young reasonably should have known that he had suffered appreciable harm from Alger’s alleged malpractice. Young’s suit was filed over three years later and, thus, the statute of limitations appeared to bar the claim.
Young argued, however, that the statute of limitations was tolled until early 2009 by the continuing representation doctrine. The continuing representation doctrine tolls the statute of limitations in legal malpractice actions when the attorney in question continues to represent the plaintiff’s interests in the matter in question. It expresses the principle that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which services were rendered. However, under Massachusetts law the doctrine does not apply where the plaintiff actually knows he has suffered appreciable harm from an attorney’s error. In those cases, there is no innocent reliance that the continued representation doctrine seeks to protect.
Young argued Alger continued to represent him in connection with the Property from 2005 until early 2009, thus tolling the statute of limitations and making Young’s Complaint timely. Alger argued that the continuing representation doctrine did not apply because Young actually knew he had suffered appreciable harm from the alleged malpractice as soon as Tornovish told Young there was an easement on the Property. The Court rejected this argument, ruling that while the conversation with Tornovish gave Young reason to believe that Alger may have committed malpractice, it did not give him actual notice of the malpractice and his resulting harm.
Alger also argued Young knew he had suffered actual harm when Jensen informed him of the existence of the easement in October of 2007. The Court found that material issues of fact existed on this issue that presented entry of summary judgment. First it was not clear whether Jensen told Young of the easement before or after October 11, 2007. Jensen stated at his deposition that he finished his title search on October 4th or 5th and probably compiled it in the first two weeks of October.
Young’s affidavit submitted in support of his opposition to the motion for summary judgment stated he learned of the easement from Jensen in mid to late October. If Young did not have actual knowledge of the easement before October 11, 2007 – three years before Young filed suit – then the continuing representation doctrine would toll the statute of limitations and save Young’s suit.
Second an issue of fact existed concerning whether Alger’s subsequent statements concerning the easement prevented Young from having actual knowledge of Alger’s malpractice. Young’s affidavit stated when he told Alger that Jensen had discovered an easement, Alger stated she “would make the situation right” and “no right to pass existed in favor of Tornovish.” The Court found these statements may have misled Young into believing the easement was invalid or the claimed easement would cause him no appreciable harm. Thus, Alger’s attempts to “make the situation right” created issues of fact that prevented the Court from entering summary judgment.