ANDREW FALKENSTEIN vs. JOSHUA McGUIRE

FLYNN, J. The issue in this matter is whether the trial court properly dismissed the appellant's complaint of attorney malpractice as an action required to be brought as a mandatory counterclaim to the appellee's prior complaint to collect attorney's fees.

1. Procedural history. Attorney Joshua McGuire ("McGuire") first brought suit against his former client, Andrew Falkenstein ("Falkenstein"), in November, 2015 to collect legal fees due. That action, McGuire v. Falkenstein, was filed on November 13, 2015, in Newton District Court (No. 1512CV0219) ("Original Action").

On December 10, 2015, Falkenstein filed an answer in the Original Action. McGuire moved to strike that answer, and eight days later, Falkenstein filed an amended answer on December 29, 2015.

Several months later, Falkenstein filed a counterclaim and jury demand, asserting a single counterclaim for breach of contract. McGuire moved to strike that counterclaim and jury demand as untimely. In response, Falkenstein filed an opposition to McGuire's motion to strike and moved for leave to further amend his answer to add additional counterclaims. McGuire's motion to strike was denied, allowing the breach of contract counterclaim to stand. The trial court did not act on Falkenstein's motion to further amend.

On May 18, 2016, five months after the original answer had been filed, Falkenstein filed another amended answer and an additional counterclaim for malpractice, alleging that McGuire had committed malpractice by failing to meet his duty of care when representing Falkenstein in the business transaction for which McGuire was attempting to collect his legal fees. McGuire moved to strike this amended answer and counterclaim, which was allowed on July 6, 2016.

On September 21, 2016, while this Original Action was still pending, Falkenstein filed a separate action for legal malpractice against McGuire in the Newton District Court, Falkenstein v. McGuire (No. 1612CV0192 ("Second Action"). Falkenstein's complaint in the Second Action asserted the same malpractice claim that had been asserted in the counterclaim that had been previously stricken in the Original Action on July 6, 2016.

The Original Action went to a jury trial in February, 2017, and the jury found for McGuire. Judgment was entered on February 24, 2017. Falkenstein has not appealed the Original Action.

On November 10, 2016, prior to the trial date of the Original Action, McGuire moved to dismiss the Second Action on the ground that this claim was a required

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compulsory counterclaim in the Original Action. The court allowed the motion to dismiss the Second Action on December 2, 2016, and this appeal followed.

2. Discussion. Falkenstein admits that the malpractice claim was a compulsory counterclaim that he was required to assert in the Original Action. Falkenstein argues, however, that he should have been permitted to bring that malpractice claim in a separate action because the trial court's decision to strike his counterclaim in the Original Action was in error. To the extent that Falkenstein is aggrieved of the trial court's decision to strike his amended pleading as improper, Falkenstein has waived that argument by failing to appeal the court's decision in the Original Action. See Misujo Realty Trust v. 5215 Dev., Inc., 2001 Mass. App. Div. 136, 137.

Pursuant to Mass. R. Civ. P. 13(a), Falkenstein was required to bring his claim for legal malpractice as a compulsory counterclaim in the Original Action. Rule 13(a) states:

"A pleading shall state as a counterclaim any claim for relief the court has power to give which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim . . . ."

All of Falkenstein's allegations for malpractice arose out of McGuire's representation in the same matter for which McGuire sought to collect his fees in the Original Action. In addition, all of the facts relied upon in Falkenstein's complaint in the Second Action had already transpired before the Original Action, a key factor in determining whether an action should have been a compulsory counterclaim. See Zora Enters., Inc. v. Burnett, 61 Mass. App. Ct. 341, 346 (2004). In his brief to this Division, Falkenstein concedes that his counterclaim was compulsory. [Note 1]

Falkenstein asserts that his claim was not precluded because the legal malpractice counterclaim was barred for procedural reasons. It is well established in Massachusetts, however, that compulsory counterclaims cannot be brought in a separate action. See Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 563 (2004) ("The failure to plead a compulsory counterclaim bars a party from bringing a later independent action on that claim."). See also Baby Furniture Warehouse Store, Inc. v. Meubles D&F Ltee., 75 Mass. App. Ct. 27, 34-35 (2009); Zora Enters., Inc., supra at 345-346; Yentile v. Howland, 26 Mass. App. Ct. 214, 216 (1988).

In the instant case, both parties were involved in the two actions; the Original Action began before the other; and all of the facts relied upon in Falkenstein's complaint in the Second Action had transpired prior to the commencement of the Original Action. Falkenstein's failure to properly bring a compulsory counterclaim in the Original Action bars him from asserting the same claim in the Second Action, and the trial court's judgment of dismissal of the complaint is affirmed.