
USCA1 Opinion

	




          September 11, 1995    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                          ____________________          No. 95-1135                                CAMERON K. WEHRINGER,                                Plaintiff, Appellant,                                          v.                                POWER AND HALL, P.C.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________               Cameron K. Wehringer on brief pro se.               ____________________               Raymond J. Kenney Jr., Kevin C. Reidy and  Martin, Magnuson,               _____________________  ______________      _________________          McCarthy & Kenney on brief for appellee.          _________________                                 ____________________                                 ____________________                      Per  Curiam.     Plaintiff-appellant,  Cameron   K.                      ___________            Wehringer, appeals pro se from the district court's dismissal                               ___ __            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                          ______________________________________                      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                                         -3-            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                          ______________________________________                      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                                         -4-            parties after the statute of limitations has expired." Bengar                                                                   ______            v.  Clark Equipment Co., 401 Mass. 554, 556 (1988); see Mass.                ___________________                             ___            R. Civ. P.  15(c); cf. Fed. R. Civ. P.  15(c).  Wehringer has                               ___            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                          __________________________________________                      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.                                         -5-                      C.  Legal Fees Paid to Replacement Counsel                           ______________________________________                      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                                      ___                      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                                                                      ___            National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 749            _________________________    ______________            (1st Cir.), cert. denied, __ U.S. __, 115 S. Ct. 2247 (1995).                        _____ ______                      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                                                 ___ _____    ______            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                                         -6-            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            _____     _______________            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.,            _______________________     ________________________________            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                                             ___ __            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                                         -7-            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                           ________________                      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.                                                      ___            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.                                                     ___            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                                         -8-            court  committed  no  error in  failing  to  enter a  default            judgment.                      Accordingly, the district court's dismissal of this            action is affirmed.                      ________                                         -9-
