                                                   Supreme Court

                                                   No. 2015-55-Appeal.
                                                   (PC12-1947)


 Artecia Behroozi               :

        v.                      :

Allen Kirshenbaum.              :




  NOTICE: This opinion is subject to formal revision before
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  notify the Opinion Analyst, Supreme Court of Rhode Island,
  250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                 Supreme Court

                                                                 No. 2015-55-Appeal.
                                                                 (PC12-1947)


             Artecia Behroozi                :

                    v.                       :

           Allen Kirshenbaum.                :


             Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Justice Indeglia, for the Court. The plaintiff, Artecia Behroozi (plaintiff or Behroozi),

a pro se litigant, appeals from the Superior Court’s entry of summary judgment in favor of the

defendant, attorney Allen Kirshenbaum (defendant or Kirshenbaum), on various claims related to

his representation of her in Family Court. This matter came before the Supreme Court on

December 10, 2015, pursuant to an order directing the parties to appear and show cause why the

issues raised should not be summarily decided. After hearing the arguments of counsel and

reviewing the memoranda submitted on behalf of the parties, we are satisfied that cause has not

been shown. Accordingly, we shall decide the matter at this time without further briefing or

argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.

                                                 I

                                       Facts and Travel

       Beginning in November 2007, Kirshenbaum represented Behroozi in post-final judgment

divorce proceedings to recover arrearages in alimony payments owed to Behroozi by her ex-




                                            -1-
husband. 1 In June 2009, Kirshenbaum withdrew as counsel with the Family Court’s approval.2

On April 13, 2012, Behroozi filed a complaint in Providence County Superior Court against

Kirshenbaum, which she later amended, setting forth claims for legal malpractice, negligence,

fraud, and breach of fiduciary duty.

       After much back and forth between the parties and copious orders in the trial court, 3 on

May 15, 2014, Kirshenbaum filed a motion for summary judgment as to Behroozi’s claims. He

argued that, based on Behroozi’s representation to the court that she did not intend to engage an

expert witness to testify with regard to her malpractice claims, she was unable as a matter of law

to establish the applicable standard of care and a breach thereof, as is required to support a legal

malpractice claim. He further argued that Behroozi’s malpractice claims were barred by the

three-year statute of limitations.      Kirshenbaum also argued that Behroozi’s fraud and

misrepresentation claims must fail because the allegedly fraudulent statements were made to the

Family Court and not to Behroozi herself.

       On June 16, 2014, the hearing justice heard the parties on Kirshenbaum’s motion for

summary judgment. As to Behroozi’s malpractice claims, the hearing justice noted that this

Court has required the need for a legal expert to establish the standard of care applicable to a

lawyer and a breach of that standard. Given that Behroozi indicated that she had no intention of

calling an expert witness, the hearing justice granted Kirshenbaum’s motion for summary

judgment pertaining to Behroozi’s claims for malpractice and breach of fiduciary duty. Even



1
  Behroozi retained Kirshenbaum through a volunteer lawyer program.
2
  The Family Court heard Kirshenbaum on his motion to withdraw on June 4, 2009. An order
reflecting the same was dated June 9, 2009; but, significantly, the order was not signed by the
Family Court judge until June 23, 2009.
3
  The Superior Court docket sheet for this case from its inception in April 2012 to its certification
to this Court in January 2015 is seventeen pages long and contains entries for more than six
dozen different orders.


                                              -2-
further, the hearing justice went on to find that these claims were also barred by the statute of

limitations, and that Behroozi had not demonstrated that the discovery rule should toll the

limitations period because she was aware of and even complained about Kirshenbaum’s alleged

wrongdoings during the course of his representation.          The hearing justice also granted

Kirshenbaum’s motion for summary judgment on Behroozi’s fraud claim, finding both that the

claim was barred by the statute of limitations and that the statements Behroozi was relying on as

the bases for her claim were not sufficient to establish fraud because they were made to the

Family Court and not to her directly.

       Final judgment was entered in favor of Kirshenbaum on June 24, 2014. Behroozi timely

filed a notice of appeal on July 1, 2014.

                                                    II

                                            Standard of Review

       “[T]his Court reviews a grant of summary judgment de novo.” Carlson v. Town of South

Kingstown, 111 A.3d 819, 822 (R.I. 2015) (quoting Allstate Insurance Co. v. Ahlquist, 59 A.3d

95, 97 (R.I. 2013)). “Our function is to review ‘the evidence in a light most favorable to the

nonmoving party, and we will affirm the judgment if we conclude that there are no genuine

issues of material fact and that the moving party is entitled to judgment as a matter of law.’” Id.

(quoting Berman v. Sitrin, 991 A.2d 1038, 1043 (R.I. 2010)). “We have long recognized that

‘[s]ummary judgment is a drastic remedy, and * * * should be dealt with cautiously.’” Laplante

v. Rhode Island Hospital, 110 A.3d 261, 264 (R.I. 2015) (quoting Beauregard v. Gouin, 66 A.3d

489, 493 (R.I. 2013)). “On the other hand, this Court has also clearly stated that ‘we will not

hesitate to affirm a grant of summary judgment if the nonmoving party fails to make a showing




                                              -3-
sufficient to establish the existence of an element essential to that party’s case * * *.’” Id.

(quoting Beauregard, 66 A.3d at 493).

                                                  III

                                               Analysis

       From what we can discern from Behroozi’s written submissions and oral argument, she

raises three issues on appeal. First, Behroozi argues that the Superior Court erred in granting

summary judgment in favor of Kirshenbaum because the discovery rule and/or the doctrine of

continuing representation tolls the statute of limitations in this scenario and because expert

testimony was not necessary to support her claim for legal malpractice. Second, Behroozi claims

that venue was improperly transferred from Providence County to Washington County when the

case was assigned to a single hearing justice following Kirshenbaum’s motion for a protective

order. Last, Behroozi claims that the hearing justice erred by ordering her to submit her medical

records in response to Kirshenbaum’s discovery request. 4

                    a.   Behroozi’s Legal Malpractice and Fraud Claims

                                 i.     Statute of Limitations

       General Laws 1956 § 9-1-14.3 sets forth a three-year statute of limitations for legal

malpractice claims. 5 See Sharkey v. Prescott, 19 A.3d 62, 66 (R.I. 2011). Behroozi retained

Kirshenbaum sometime in November 2007, and he represented her until he withdrew in June

2009. However, Behroozi did not file her complaint until April 13, 2012. Therefore, any claims

based on Kirshenbaum’s representation prior to April 13, 2009, are barred by the three-year



4
  Behroozi also asks that we impose monetary sanctions on two Superior Court justices involved
in this case and on Kirshenbaum’s attorneys.
5
  General Laws 1956 § 9-1-14.3 provides, in pertinent part, that “an action for legal malpractice
shall be commenced within three (3) years of the occurrence of the incident which gave rise to
the action * * *.”


                                            -4-
statute of limitations. The only viable timeframe within which Behroozi can base any of her

malpractice claims is from April 13, 2009, through June 23, 2009, when the order entered

allowing Kirshenbaum to withdraw as counsel. A review of the record shows that the only

action taken during that period of time revolved around Kirshenbaum’s withdrawal as counsel.

          Furthermore, in this context, Behroozi’s claim for fraud—which centers on alleged

misrepresentations Kirshenbaum made to the Family Court, particularly with regard to her ex-

husband’s income and the amount of alimony owed to her—is also subject to the three-year

statute of limitations for a malpractice action because the fraud she alleges arises from her

professional relationship with Kirshenbaum. See Martin v. Howard, 784 A.2d 291, 302 (R.I.

2001) (noting that the plaintiff’s fraud claim arose out of her personal injury claim, and thus was

subject to the three-year statute of limitations for personal injury actions versus the ten-year

statute of limitations for fraud). Thus, her fraud claim is barred by the statute of limitations as

well. 6

          Behroozi posits that she “did not appreciate that she had an [sic] legal malpractice claim

against the defendant at the time of the occurrences” and seemingly attempts to invoke the



6
  We note that Behroozi’s fraud claim, standing alone, also fails in two much more rudimentary
respects. First, she did not rely on any of the allegedly fraudulent statements made by
Kirshenbaum to the Family Court; to the contrary, she continually challenged Kirshenbaum on
those issues. Because Behroozi cannot show she relied on the purportedly fraudulent statements,
she cannot establish a prima facie fraud claim. See Parker v. Byrne, 996 A.2d 627, 634 (R.I.
2010) (“To establish a prima facie fraud claim, ‘the plaintiff must prove that the defendant made
a false representation intending thereby to induce [the] plaintiff to rely thereon and that the
plaintiff justifiably relied thereon to his or her damage.’” (quoting Bitting v. Gray, 897 A.2d 25,
34 (R.I. 2006))). Moreover, Behroozi has failed to produce any evidence—beyond mere
allegations—to substantiate her claim that Kirshenbaum made any fraudulent misrepresentations
to the Family Court. “[A] party ‘opposing a motion for summary judgment has the burden of
proving by competent evidence the existence of a disputed issue of material fact and cannot rest
upon mere allegations * * * in the pleadings, mere conclusions, or mere legal opinions.’”
Toegemann v. City of Providence, 21 A.3d 384, 386 (R.I. 2011) (quoting Poulin v. Custom
Craft, Inc., 996 A.2d 654, 658 (R.I. 2010)).


                                              -5-
discovery-rule exception to the statute of limitations. “The discovery-rule exception serves ‘to

protect individuals suffering from latent or undiscoverable injuries who then seek legal redress

after the statute of limitations has expired for a particular claim.’’’ Sharkey, 19 A.3d at 66

(quoting Canavan v. Lovett, Schefrin and Harnett, 862 A.2d 778, 783 (R.I. 2004)).             “The

standard applied to this exception is objective: [I]t ‘requires only that the plaintiff be aware of

facts that would place a reasonable person on notice that a potential claim exists.’” Id. (quoting

Canavan, 862 A.2d at 784). As the trial justice pointed out, Behroozi continuously questioned

Kirshenbaum about the adequacy of his representation, particularly with regard to

Kirshenbaum’s accounting of her ex-husband’s income for purposes of calculating how much

alimony was owed to her. Behroozi was clearly “aware of facts” that would lead her to believe

she had a potential malpractice claim, and the trial justice did not err in concluding that the

discovery rule did not toll the statute of limitations in this scenario.

        For the first time on appeal, Behroozi also argues that the doctrine of continuing

representation tolls the statute of limitations on her malpractice claims. “[I]n jurisdictions where

[the continuing representation doctrine] applies, that doctrine, which ‘recognizes that a person

seeking professional assistance has a right to repose confidence in the professional’s ability and

good faith,’ * * * ‘tolls the statute of limitations while the defendant attorney [in a malpractice

case] continues to represent the plaintiff.’” Mendes v. Factor, 41 A.3d 994, 1005 (R.I. 2012)

(quoting Feddersen v. Garvey, 427 F.3d 108, 114 (1st Cir. 2005)). We need not delve into

whether the continuing representation doctrine applies in this scenario because this Court has not

adopted it. See id. Furthermore, because Behroozi never presented this particular argument to

the hearing justice, in accordance with our well-settled raise-or-waive rule, her argument as to




                                                -6-
this point is deemed to be waived. See, e.g., Warwick Housing Authority v. McLeod, 913 A.2d

1033, 1037 (R.I. 2007).

                               ii.     Need for Expert Testimony

       More significantly, Behroozi’s malpractice claims necessarily fail because she has not

retained an expert witness to testify in support of her case. On many occasions we have stated

that “in a legal malpractice action, a plaintiff opposing a motion for summary judgment generally

must present expert evidence, in the form of an affidavit or otherwise, establishing the standard

of care.” Ahmed v. Pannone, 779 A.2d 630, 633 (R.I. 2001). It is undisputed that Behroozi has

not produced any expert testimony to establish the standard of care purportedly applicable to

Kirshenbaum’s representation; indeed, it is her contention that she need not provide any expert

testimony because the “conduct and misrepresentations to [Behroozi] are so obvious * * * [that

n]o specialized knowledge is needed for the trier of fact to understand the evidence or determine

a fact at issue.” We disagree. Behroozi is correct in that there is an exception to the general rule

requiring expert testimony to establish the standard of care “when the malpractice ‘is so obvious

that the trier of fact can resolve the issue as a matter of common knowledge.’” Id. at 633 n.1

(quoting Focus Investment Associates, Inc. v. American Title Insurance Co., 992 F.2d 1231,

1239 (1st Cir. 1993)). However, this is not such a scenario. We have previously recognized that

family law is a complicated facet of the law and that expert testimony is required to establish the

standard of care in a legal malpractice claim in the family law context. See Cronan v. Iwon, 972

A.2d 172, 174 (R.I. 2009) (mem.). As such, summary judgment on Behroozi’s malpractice

claims was also appropriate because she has not retained, and has unequivocally stated that she

does not intend to retain, an expert witness to testify as to the applicable standard of care and any

breach thereof.




                                              -7-
                          b. Behroozi’s Remaining Claims on Appeal

       We need not tarry over Behroozi’s remaining claims on appeal. Suffice it to say, they are

wholly without merit. First, venue was never transferred in this matter—the pretrial matters

simply followed the hearing justice to whom the case had been assigned when she moved from

Providence County to Washington County as part of her regular rotation. In addition, given that

the hearing justice ultimately granted Behroozi’s motion for a protective order, Kirshenbaum

never actually reviewed any of her medical records, rendering her claim as to the discovery order

requiring her to produce them moot. See United Service and Allied Workers of Rhode Island v.

Rhode Island State Labor Relations Board, 969 A.2d 42, 44 (R.I. 2009) (“[I]f ‘this Court’s

judgment would fail to have a practical effect on the existing controversy,’ the question has

become moot.” (quoting City of Cranston v. Rhode Island Laborers’ District Council, Local

1033, 960 A.2d 529, 533 (R.I. 2008))).

                                                 IV

                                            Conclusion

       For the reasons set forth above, we affirm the judgment of the Superior Court. The

papers in this case may be returned to that tribunal.




                                              -8-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Artecia Behroozi v. Allen Kirshenbaum.

CASE NO:              No. 2015-55-Appeal.
                      (PC 12-1947)

COURT:                Supreme Court

DATE OPINION FILED: January 12, 2016

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

                      For Plaintiff: Artecia Behroozi, Pro Se

                      For Defendant: Kristina I. Hultman, Esq.
                                     Peter E. Garvey, Esq.
