KARL BARBACKI, Personal Representative, & Another v. ABIGAIL WILLIAMS & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-184

KARL BARBACKI, personal representative,1 & another2

vs.

ABIGAIL WILLIAMS & another.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal concerns a dispute over legal representation

and collection of related attorney's fees. The plaintiffs, who

are personal representatives of the estate of Nellie Barbacki,

appeal from three summary judgment orders granted in favor of

the defendants, Abigail Williams and Abigail Williams &

Associates, LLC, which (1) dismissed the plaintiffs' claims of

unfair or deceptive practices under G. L. c. 93A, and for

equitable determination of legal fees; (2) denied the

plaintiffs' motion for summary judgment on the defendants'

counterclaims for breach of contract and breach of the covenant

of good faith and fair dealing; and (3) allowed the defendants'

1 Of the estate of Nellie Barbacki.
2 Rosalind Brezinski, personal representative of the estate of
Nellie Barbacki.
3 Abigail Williams & Associates, LLC.
motion for summary judgment on their counterclaims and entered

judgment in the defendants' favor. We affirm.

Background. 1. Medical malpractice case. In 2014, the

plaintiffs, Karl Barbacki and Rosalind Brezinski, contacted

defendant Abigail Williams (Williams) to inquire about bringing

a medical malpractice claim on behalf of their mother, Nellie

Barbacki.4 Nellie had suffered a severe stroke after being

discharged by her primary care physician despite showing

concerning symptoms. Karl, as power of attorney for Nellie,

hired Williams, and her then-law firm, Abigail Williams &

Associates, P.C. (AWA PC), and the parties signed a contingency

fee agreement regarding the terms of the representation that

would be provided, including, among other things, the payment of

attorney's fees based on a percentage of the gross amount

recovered. Williams then brought a lawsuit on behalf of Nellie

against the doctor and began negotiating with the doctor's

attorney about a settlement agreement. The case ultimately

settled for $250,000, but Karl refused to pay Williams the legal

fee.

4 Nellie Barbacki passed away while her medical malpractice suit
was pending and the complaint was amended to substitute Karl
Barbacki and Rosalind Brezinski, personal representatives of the
estate of Nellie Barbacki, as plaintiffs. To avoid confusion,
we refer to members of the Barbacki family by their first names
from this point forward.

2
On April 15, 2016, Abigail Williams & Associates, LLC (AWA

LLC)5 filed a notice of attorney's lien for legal fees in the

amount of $90,000, plus $644.45 for out-of-court expenses,

though Williams signed the notice as a representative of AWA PC.

A check was issued to the order of plaintiffs, plaintiffs'

attorney, and "Abigail Williams and Associates, L.L.C." on

February 22, 2017.

2. Legal malpractice case. On May 5, 2016, Karl, as

Nellie's power of attorney, filed a legal malpractice claim in

the Superior Court against Williams and AWA LLC6 claiming, among

other things7, that Williams settled the case without

authorization, that the settlement amount was too low, and that

Williams settled in order to avoid proceeding before the medical

tribunal when she had not obtained an expert opinion on the

case.

5 On April 17, 2015, during her representation of Nellie,
Williams created AWA LLC.
6 Erin Atwater, an associate attorney at AWA LLC, was also named

as a defendant, but the claims against her were dismissed on
summary judgment.
7 Karl also set out claims of breach of fiduciary duty,

fraudulent or intentional misrepresentation, negligent
misrepresentation, breach of contract as to the firm, and
vicarious liability/respondent superior as to the individual
defendants.

3
Nellie died on October 7, 2016. Karl and Rosalind

Brezinski were named as personal representatives of Nellie's

estate.

After a jury trial in 2019, the legal malpractice case was

resolved in favor of Williams and AWA LLC on all counts. The

plaintiffs appealed, and a panel of this court dismissed the

appeal as untimely but noted it would have affirmed the judgment

if it had reached the merits. Barbacki vs. Williams, Mass. App.

Ct., No. 21-P-56, slip op. at 2 (May 2, 2022).

3. Chapter 93A claim and counterclaims. In 2018, before

the jury trial, the plaintiffs sought to add claims for

violation of G. L. c. 93A, and for equitable distribution of

legal fees. However, a Superior Court judge denied the motion

to amend, explaining the claim would "add additional delay and

needless complexity to what is a simple straight forward matter"

and that "[t]here is still time for the plaintiff[s] to bring a

separate G. L. c. 93A [action] if [they] wish[]."

The plaintiffs then brought a new action against Williams

and AWA LLC,8 asserting claims under G. L. c. 93A, and seeking an

equitable determination of legal fees. The defendants brought

counterclaims seeking to obtain the attorney's fee under claims

8 AWA LLC associate Erin Atwater was also named as a defendant in
this case. The claims against her were dismissed on summary
judgment and are not at issue in this appeal.

4
of breach of contract and breach of the covenant of good faith

and fair dealing. Summary judgment was granted for the

defendants on the plaintiffs' G. L. c. 93A, and equitable

determination claims on June 30, 2020. On August 13, 2020, a

second Superior Court judge allowed the defendants' motion to

attach funds held in an account by the plaintiffs' attorney in

the amount of $30,000. On November 18, 2020, the plaintiffs'

motion for summary judgment on the defendants' counterclaims was

denied. Then, on October 25, 2021, the defendants' motion for

summary judgment on their counterclaims was allowed.

Discussion. A court may grant summary judgment where

"there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law."

Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "In

reviewing the . . . grant of a motion for summary judgment, we

conduct a de novo examination of the evidence in the summary

judgment record . . . and view the evidence in the light most

favorable to the part[y] opposing summary judgment . . . drawing

all reasonable inferences in [the nonmoving party's] favor"

(citations and quotations omitted). Bulwer v. Mount Auburn

Hosp. 473 Mass. 672, 680 (2016).

1. Timeliness of breach of contract counterclaim. The

plaintiffs first argue that the defendants' fee claim was time

barred because it was not brought within one year of Nellie's

5
death on October 7, 2016. The defendants are pursuing ownership

of a legal fee following a defense verdict in the underlying

legal malpractice case. General Laws c. 190B, § 3-803 (a),

states "[e]xcept as provided in this chapter, a personal

representative shall not be held to answer to an action by a

creditor of the deceased unless such action is commenced within

[one] year after the date of death of the deceased." Section 3-

803 (d), further states "[n]othing in this section affects or

prevents . . . any proceeding to enforce any . . . lien upon

property of the estate." The defendants argue that the

attorney's fee is a "lien" pursuant to G. L. c. 221, § 50, and

therefore not subject to the one year time limit. We agree.

General Laws c. 221, § 50, states that an attorney "shall

have a lien for [her] reasonable fees and expenses upon [her]

client's cause of action, counterclaim or claim, upon the

judgment, decree or other order in [her] client's favor." Once

the medical malpractice case settled, the defendants were

eligible for a lien on the amount owed to them per the

contingency fee agreement. See Northeastern Avionics, Inc. v.

Westfield, 63 Mass. App. Ct. 509, 513 (2005) ("A lien [pursuant

to G. L. c. 221, § 50,] may . . . attach to proceeds derived

from a stipulation of dismissal filed pursuant to an agreement

to settle a claim in return for the payment of money").

6
Moreover, G. L. c. 190B, § 3-803, does not apply to a

lawsuit by an equitable owner to enforce their title. See

Stoneham Five Cents Sav. Bank v. Johnson, 295 Mass. 390, 395

(1936). Here, the defendants did not sue to collect a debt.

Rather, the defendants brought a claim to enforce title to their

portion of the settlement proceeds. For all of these reasons,

we conclude that the judge properly concluded that the

defendants' breach of contract claim was not time barred.

2. Enforceability of contingency fee agreement. "Whether

a contract is ambiguous is . . . a question of law." Eigerman

v. Putnam Invs., Inc., 450 Mass. 281, 287 (2007). "A term is

ambiguous only if it is susceptible of more than one meaning and

reasonably intelligent persons would differ as to which meaning

is the proper one." Citation Ins. Co. v. Gomez, 426 Mass. 379,

381 (1998). The plaintiffs claim that the contingency fee

agreement is unenforceable because it did not comply with Mass.

R. Prof. C. 1.5 (c), as amended, 480 Mass. 1315 (2018).9 Rule

1.5 (c) (3), requires that a contingency fee agreement state in

writing "the nature of the claim, controversy, and other matters

9 As an initial matter, we note that were we to conclude that
Williams violated Mass. R. Prof. C. 1.5 (c), she would likely be
subject to discipline. Mass. R. Prof. C. 8.5, as appearing in
454 Mass. 1301 (2009). However, the plaintiffs cite no legal
authority, and we find none, to support the argument that a
violation of rule 1.5 would render a contingency fee agreement
unenforceable.

7
with reference to which the services are to be performed." In

the contingency fee agreement between AWA PC and Karl, as power

of attorney for Nellie, the claim, controversy, and other matter

is described simply as "July 2, 2013." Though we acknowledge

this description is sparse, there was clearly a meeting of the

minds between the parties about the purpose of the contract and

the claim for which Williams would be representing Nellie –- the

medical malpractice action. This is reflected in the actions

Williams took beginning with, but not limited to, filing a

complaint against the doctor.

It is not clear what event specifically transpired on July

2, 2013. The interaction between Nellie and her doctor occurred

on July 1, 2013, and Nellie suffered a stroke on July 3, 2013.

However, AWA LLC's preliminary settlement breakdown lists the

date of injury as July 2, 2013. Ambiguous terms can be

clarified through a course of performance of a contract. See

Lawrence v. Cambridge, 422 Mass. 406, 411 (1996) ("in an

ordinary contract, where matters are left open the court may

imply terms either that are reasonable or that may be gathered

from the subsequent course of performance"). The parties'

course of performance here clearly showed they all understood

that the scope of the representation was centered around

Nellie's medical malpractice claim against her doctor. Williams

represented Nellie in the medical malpractice case, which

8
included filing suit on her behalf, collecting medical records

from the family, and communicating with Karl about the

settlement amount. Though Karl disputes the details of his

conversation with Williams leading to her acceptance of the

settlement, neither party disputes the purpose of those calls,

nor does anyone dispute Williams's relationship with the

plaintiffs.

We conclude the term defining the nature or controversy in

the contingency fee agreement, taken together with the actions

of the parties, demonstrates that there was a meeting of the

minds, and the contingent fee agreement was not "susceptible of

more than one meaning and reasonably intelligent persons would

[not] differ as to which meaning is the proper one." Citation

Ins. Co., 426 Mass. at 381. Accordingly, the contingency fee

agreement is enforceable.

3. Party to the contingency fee agreement. The plaintiffs

claim that the defendants cannot make a claim under the

contingency fee agreement because Williams and AWA LLC were not

parties to the agreement. While it is true that the contingency

fee agreement only lists Karl, as power of attorney for Nellie,

and AWA PC as parties, we conclude that this does not prevent

the defendants from recovering Williams' earned fee.

The corporate form may be disregarded where "there is a

confused intermingling of activity of two or more corporations

9
engaged in a common enterprise with substantial disregard of the

separate nature of the corporate entities, or serious ambiguity

about the manner and capacity in which the various corporations

and their respective representatives are acting" (emphasis

omitted). Scott v. NG U.S. 1, Inc., 450 Mass. 760, 767 (2008),

quoting My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass.

614, 619 (1968). "The right and the duty of courts to look

beyond the corporate forms are exercised only for the defeat of

fraud or wrong, or the remedying of injustice." Scott, supra,

quoting Hanson v. Bradley, 298 Mass. 371, 381 (1937).

We see no reason why these same principles should not apply

here. Abigail Williams is the sole registered agent, president,

and director of AWA PC, and the sole resident agent and manager

of AWA LLC. Indeed, the plaintiffs acknowledge in their

complaint that "[Nellie] retained Abigail Williams, Esq., and

Williams & Associates to represent her." Although Williams

signed the contingency fee agreement under AWA PC, she

incorporated the LLC during her representation of the

plaintiffs. This is a distinction without a difference for

purposes of enforcement of the contingency fee agreement. The

settlement check was payable to the plaintiffs, the plaintiffs'

attorneys, and "Abigail Williams and Associates, L.L.C."

Notwithstanding the legal entities, Abigail Williams was the

10
plaintiffs' attorney in the medical malpractice case, and she is

therefore entitled to collect her earned fee.

4. Chapter 93A claims. The judge who granted summary

judgment in favor of the defendants on the plaintiffs' G. L.

c. 93A claims explained that "[t]he claims in this case arise

out of the same transaction or series of connected transactions

that gave rise to the earlier litigation . . . specifically,

defendants' representation of [Nellie] Barbacki in the medical

malpractice case" (citation and quotation omitted). The

plaintiffs argue that because the legal malpractice case was on

appeal when summary judgment was decided, the judgment was not

final and that the doctrine of res judicata does not apply.

This argument is unavailing because "[i]n Massachusetts, as

elsewhere, a trial court judgment is final for purposes of res

judicata or issue preclusion regardless of the fact that it is

on appeal." Commonwealth v. Hernandez, 481 Mass. 582, 595

(2019). The plaintiffs reference the judge's statement in

denying their motion to amend that "[t]here is still time for

the [plaintiffs] to bring a separate G. L. c. 93A [action] if

[they] wish[]" to argue that their c. 93A claims are not barred

by res judicata. However, we read this as a comment on the

applicable statute of limitations, rather than the substantive

merit of such a claim.

11
Lastly, the plaintiffs argue that Kattar v. Demoulas, 433

Mass. 1 (2000), supports their argument that the judgment on the

c. 93A claims should be vacated because the judge could have

made findings of fact contrary to the facts the jury found in

the legal malpractice case to support their decision. Demoulas

dealt with a situation where a jury made a nonbinding advisory

opinion on a c. 93A claim. 433 Mass. at 12. The judge then

made findings of fact that were contrary to the jury's advisory

opinion, which the Court held was proper. Id. However, this

case is distinguishable from Demoulas.

In Demoulas, the common law claims and c. 93A claims were

being decided in the same case; in that situation, it was proper

for the judge to make his own findings. Here, the same

transaction had already been adjudicated on a final basis, as a

separate action entirely. Therefore, all elements of claim

preclusion were met: "(1) the identity or privity of the

parties to the present and prior actions; (2) identity of the

cause of action; and (3) prior final judgment on the merits."

Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass.

App. Ct. 386, 390 (1994). Accordingly, the judge properly

12
determined that the c. 93A claims were barred by the doctrine of

res judicata.

Judgment affirmed.

By the Court (Blake,
Hershfang &
D'Angelo, JJ.10),

Clerk

Entered: March 8, 2023.

10 The panelists are listed in order of seniority.

13