James D. Javaras v. Steven M. Lafortune.

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

24-P-322

JAMES D. JAVARAS

vs.

STEVEN M. LAFORTUNE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After hiring Steven LaFortune, the defendant (attorney), to

represent him in litigation, James Javaras, the plaintiff

(Javaras), sued him for malpractice, breach of a fiduciary duty,

breach of contract, and violation of G. L. c. 93A. The

attorney, claiming he had not been paid for his legal services,

counterclaimed for breach of contract, violation G. L. c. 93A,

and quantum meruit. As to Javaras's claims, a judge entered

summary judgment for the attorney on all but part of the c. 93A

claim (later resolved by an agreement for judgment in the

attorney's favor). Following a jury-waived trial on the

counterclaims, a second judge entered an amended judgment for

the attorney for breach of contract in the amount of
$1,178,796.85 and ordered judgment to enter for Javaras on the

remaining counterclaims. The parties cross-appeal, and we

affirm.

Discussion. a. Summary judgment. The judge here allowed

the attorney's motion for summary judgment because Javaras did

not file his civil action within the applicable three-year

statute of limitations. Summary judgment may enter when the

record shows that "there is no genuine issue as to any material

fact and that 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). "[S]ummary judgment may be granted on the question

whether a particular statute of limitations has run." Malapanis

v. Shirazi, 21 Mass. App. Ct. 378, 383 (1986). We apply de novo

review to the summary judgment decision. Karatihy v.

Commonwealth Flats Dev. Corp., 84 Mass. App. Ct. 253, 255

(2013).

The undisputed facts show that Javaras did not timely file

his civil action against the attorney. Javaras served for many

years as a trustee to four trusts in connection with the

DiGeronimo family. In July of 2016, Javaras contemplated filing

a lawsuit against the beneficiaries. After obtaining advice

from the attorney that trust funds could be used to pay for the

litigation, Javaras withdrew money from the DiGeronimo trust

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accounts to pay the attorney fees. On June 29, 2016, Javaras,

represented by the attorney, filed a lawsuit against the

beneficiaries. Months later, on January 6, 2017, another

Superior Court judge issued a preliminary order regarding a

motion for a preliminary injunction filed by new trustees for

the DiGeronimo trusts prohibiting Javaras from using trust funds

to pay attorney fees. Within weeks of that order, Javaras filed

an accounting with the court as also ordered. On March 2, 2017,

that same judge issued a memorandum of decision on the motion

for a preliminary injunction, ordering the withdrawn funds to be

returned or paid into escrow and prohibiting Javaras from

accessing trust assets. That judge also concluded that Javaras

incurred legal fees "for his personal defense . . . as opposed

to expenses he incurred for the trusts' benefit." Javaras

terminated the attorney's representation on November 10, 2017,

and more than three years later he filed his civil action

against the attorney on November 16, 2020.

"Actions of contract or tort for malpractice, error or

mistake against attorneys . . . shall be commenced only within

three years next after the cause of action accrues." G. L.

c. 260, § 4. The cause of action here accrued no later than

March 2, 2017, when the judge issued his memorandum of decision

on the injunction. At that time, the judge concluded that

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Javaras used trust funds for his personal defense. Javaras has

consistently maintained (and alleged in his complaint) that he

accessed the trust funds on the advice of the attorney. As

Javaras put it in his complaint, "Essentially every aspect of

the Court's Order was contrary to what . . . [the attorney] had

counseled Javaras would happen at the outset of the action."

Thus, when the judge issued his memorandum of decision, Javaras

knew or reasonably should have known that the attorney had

misadvised him. See Williams v. Ely, 423 Mass. 467, 473 (1996)

(statute of limitations begins to run when "plaintiff knows or

reasonably should know" that he has been harmed by defendant's

conduct). "[I]t is not necessary that the plaintiff client know

the full extent of harm or loss or know precisely in what manner

and what harmful after-effects flow from the alleged

malpractice." Frankston v. Denniston, 74 Mass. App. Ct. 366,

374 (2009). Therefore, the late-filed civil action is barred by

G. L. c. 260, § 4, and the attorney is entitled to summary

judgment.

We disagree with Javaras's contention that the statute of

limitations had been tolled. While it is true that the statute

may be tolled "where the attorney in question continues to

represent the plaintiff's interest in the matter in question,"

Murphy v. Smith 411 Mass. 133, 137 (1991), tolling for this

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reason would not have mattered because the attorney's

representation here ended on November 10, 2017, more than three

years before the filing of the civil action. We also reject the

related contention that the statute of limitations tolled due to

the attorney's frequent advice that the adverse rulings were

wrong and would be corrected on appeal. The "accrual of a legal

malpractice claim does not necessarily depend on the ultimate

outcome of the underlying litigation." Frankston, 74 Mass. App.

Ct. at 376. The mere fact "[t]hat a case is ongoing and not

finally adjudicated through the trial or appellate stage does

not mean that there is no duty of inquiry into the harm and its

connection to the attorney's conduct and no accrual of a legal

malpractice claim." Id. at 375. We decline to address a

further contention about tolling during the pandemic as Javaras

did not raise this below and presents just a single sentence in

his brief. See Mass. R. A. P. 16 (a) (9) (A), as appearing in

481 Mass. 1628 (2019) ("appellate court need not pass upon

questions or issues not argued in the brief").

b. Trial. On review of a jury-waived trial, "[w]e accept

the judge's findings of fact unless clearly erroneous, but we

'scrutinize without deference the legal standard which the judge

applied to the facts.'" Ndoro v. Torres, 105 Mass. App. Ct.

128, 133 (2024), quoting Andover Hous. Auth. v. Shkolnik, 443

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Mass. 300, 306 (2005). Upon review of the claims advanced on

appeal by Javaras and the attorney, we discern no errors by the

trial judge.

i. Breach of contract counterclaim. Contrary to Javaras's

contention, the trial judge did not err in assessing the breach

of contract counterclaim. He argues that the judge

impermissibly required expert testimony on whether the fees

charged by the attorney were excessive. In his written

findings, the judge noted, "Javaras subjectively felt that the

bill was beyond that which was objectively reasonable[;] however

Javaras did not retain an expert attorney to review the bill in

order to provide an objective source for his subjective view."

In context, the judge did not mandate expert testimony to raise

a defense.

Instead, the judge merely articulated his thought process

in weighing the evidence of Javaras's defense to the

counterclaim. According to the judge, the attorney credibly

testified that the "billings were reasonable and necessary."

Javaras testified that the legal work had been done and

acknowledged that he had no factual basis to state that the fees

were excessive because he was "not a lawyer." Given this

evidence, without proof from a "qualified attorney to review the

bill and provide testimony," the judge was unpersuaded by

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Javaras's subjective sense that the bills were excessive. We

decline to second guess the judge's thought process and accord

his assessment of the quality of the evidence "considerable

respect because 'it is the trial judge who, by virtue of his

firsthand view of the presentation of evidence, is in the best

position to judge the weight and credibility of the evidence.'"

Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203 (1986), quoting

New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675

(1977).

ii. The attorney's 93A counterclaim. Finally, the

attorney contends that the trial judge erred by failing to

address evidence showing that Javaras made repeated fraudulent

misrepresentations in violation of c. 93A "to string him along

to continue to work without payment." We disagree.

The trial judge fully addressed this claim, but was

unpersuaded that it constituted a violation of 93A. As the

judge noted, Javaras faced significant legal bills that were

"higher than expected," worked with two additional attorneys "to

provide him with input on the billings," "worked collaboratively

to try and keep the attorney fees under control," and engaged in

unsuccessful mediation. It is clear from the judge's emphasis

on this evidence and by his rejection of the attorney's

contention as not credible that he was not persuaded Javaras's

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conduct amounted to "misrepresent[ing] the true situation" to

keep the attorney "on a string." Greenstein v. Flatley, 19

Mass. App. Ct. 351, 356 (1985). Here, again, we do not displace

the judge's view of the evidence after trial. See Edinburg, 22

Mass. App. Ct. at 203.

Summary judgment for the
attorney on Javaras's
complaint and amended
judgment after jury-waived
trial on the counterclaims
affirmed.

By the Court (Blake, C.J.,
Hodgens & Toone, JJ.1),

Clerk

Entered: August 5, 2025.

1 The panelists are listed in order of seniority.

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