KARL BARBACKI, Personal Representative, & Another v. ABIGAIL WILLIAMS & Another. ( 2023 )

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-265
KARL BARBACKI, personal representative,1 & another2
vs.
ABIGAIL WILLIAMS & another.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, who are the personal representatives of the
estate of Nellie Barbacki, appeal from the denial of their
motion for relief from a judgment in a legal malpractice trial.
We conclude there was no error of law or abuse of discretion by
the motion judge and affirm the order.
Background. This appeal concerns a dispute over legal
representation and collection of related attorney's fees. For a
more detailed explanation of the facts and procedural history of
the underlying claim, see this panel's unpublished memorandum
and order, also issued today. Barbacki vs. Williams, 22-P-184.
We summarize the facts relevant to this appeal below.
1 Of the estate of Nellie Barbacki.
2 Rosalind Brezinski, personal representative of the estate of
Nellie Barbacki.
3 Abigail Williams & Associates, LLC.
Beginning in 2014, defendant Abigail Williams represented
the plaintiffs' decedent, Nellie Barbacki, in a medical
malpractice lawsuit.4 After a settlement, the plaintiffs filed
an action against the defendants, claiming Williams committed
legal malpractice during her representation of Nellie Barbacki.
In 2019, a jury returned a verdict on all counts in favor of the
defendants.5
On June 23, 2021, the plaintiffs submitted a motion to
vacate judgment pursuant to Mass. R. Civ. P. 60 (b) (6), 365
Mass. 828 (1974), arguing that Williams and her attorney
committed fraud on the court by lying during the legal
malpractice trial. Their claims rely on a Board of Bar
Overseers Hearing Report (BBO report), recommending the
disbarment of Williams. A judge denied the motion, explaining:
"The motion is without merit. The issues relating to
Abigail Williams['s] finances and license to practice law
were subject to motions in limine and evidentiary rulings
throughout the trial. The findings contained within the
Board of Bar Overseers Hearing Report, years after trial,
are collateral to the issues determined by the jury;
whether Abigail Williams committed legal malpractice,
settled the case for short money, and/or made
misrepresentations to Nellie Barbacki."
4 Nellie Barbacki passed away while 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.
5 The plaintiffs appealed the judgment to a panel of this court,
which in an unpublished memorandum and order dismissed the
appeal as untimely but noted it would have affirmed on the
merits. See Barbacki vs. Williams, Mass. App. Ct., No. 21-P-56,
slip. op. at 2 (May 2, 2022).
2
Discussion. A judge's denial of a Mass. R. Civ. P. Rule 60
(b) (6) motion "will not be disturbed absent an abuse of
discretion." Sahin v. Sahin, 435 Mass. 396, 399 n.6 (2001).
The decision will not be reversed unless "the judge's broad
discretion was abused to such an extent that his decision
constitutes an arbitrary determination, capricious disposition,
whimsical thinking, or idiosyncratic choice which no
conscientious judge, acting intelligently, could honestly have
reached and which effectively amounts to a miscarriage of
justice." Care & Protection of Georgette, 54 Mass. App. Ct.
778, 787 (2002), S.C., 439 Mass. 28 (2003).
A fraud on the court has occurred only "where 'it can be
demonstrated, clearly and convincingly, that a party has
sentiently set in motion some unconscionable scheme calculated
to interfere with the judicial system’s ability impartially to
adjudicate a matter by improperly influencing the trier or
unfairly hampering the presentation of the opposing party’s
claim or defense.'" Paternity of Cheryl, 434 Mass. 23, 35
(2001), quoting Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418
Mass. 596, 598 (1994). "Proof of conduct that amounts to
common-law fraud –- that is, a knowing, materially false
statement of fact that induces reliance thereon –- is not
sufficient" to establish fraud on the court. Guardianship of
Ingrid, 102 Mass. App. Ct. 1, 10 (2022). "This high bar is an
3
expression of 'the system’s important interest in finality.'"
Id., quoting Owens v. Mukendi, 448 Mass. 66, 76 (2006).
The plaintiffs argue that their motion to vacate the
judgment should have been granted because the BBO report
revealed Abigail Williams and her attorney lied during the trial
about Williams's financial situation, constituting a fraud on
the court. They contend that the BBO report confirmed their
theory that Williams was in a dire financial condition dating
back to 2009, contrary to her testimony at trial.6 The
6 The plaintiffs point to the following exchange, between the
plaintiffs' attorney and Williams at trial, as evidence that
Williams lied:
Q: "And based on your fee agreement, you must have the
assets or money to devote to that office to pay for or
in that case, to pay for experts, staff, depositions
and other things of that nature, correct?"
A: "Sure."
Q: "And you allege that your firm was in that financial
position, in 2014, to handle this matter?"
A: "Yes. If I thought there was a concern about not
being able to handle the matter, I would not have
taken it."
The plaintiffs also cite this later exchange between their
attorney and Williams:
Q: "In 2014 and 2015 and 2016, did you experience
difficulty in keeping track of monies that you had
spent on behalf of clients, that you (indiscernible)
charged the clients in terms of case costs and
expenses of litigation?"
A: "No."
4
plaintiffs also contend Williams lied about the reason her law
license was suspended.7
Even if we were to credit the allegations that Williams
lied at trial about her financial condition or the reason that
her license had been suspended, it would not amount to an
"extraordinary circumstance" for which relief under rule 60 (b)
(6) is reserved.8 See Pentucket Manor Chronic Hosp., Inc. v.
Rate Setting Comm'n, 394 Mass. 233, 236 (1985); Bowers v. Board
of Appeals of Marshfield, 16 Mass. App. Ct. 29, 33 n.5 (1983)
("Rule 60 is to litigation what mouth-to-mouth resuscitation is
to first aid: a life-saving treatment, applicable in desperate
cases" [citation omitted]). Though examples of fraud on the
court can include "the involvement of an attorney (an officer of
the court) in the perpetration of fraud," Williams was not
acting in her capacity as an attorney at trial; she was acting
as a defendant. See MacDonald v. MacDonald, 407 Mass. 196, 202
(1990), quoting Lockwood v. Bowles, 46 F.R.D. 625, 631-632 (D.
D. C. 1969). The fact that Williams was also an attorney does
7 Williams testified that she was not practicing at the time of
the trial because of a "non-disciplinary administrative
suspension" and described it as a "recordkeeping" issue.
8 The plaintiffs also argue that Williams failed to correct any
false statements of facts made on her behalf. However, "conduct
such as nondisclosure to the adverse party or the court of facts
pertinent to the matter before it, without more, does not
constitute fraud on the court for purposes of setting aside a
judgment under rule 60 (b)." Sahin, 435 Mass. at 406.
5
not sufficiently elevate her alleged lie to an "unconscionable
scheme." See Paternity of Cheryl, 434 Mass. at 35; Guardianship
of Ingrid, 102 Mass. App. Ct. at 10, quoting Sahin, 435 Mass. at
402 ("perjury of a witness [is not] likely to be sufficient,
even where the perjury 'relat[es] to [a] central issue in the
case'").
Moreover, at trial, the judge allowed the jury to consider
evidence about Williams's financial situation, including the
testimony of a former employee about Williams's financial
difficulties.9
Order denying motion for
relief from judgment
affirmed.
By the Court (Blake,
Hershfang &
D'Angelo, JJ.10),
Clerk
Entered: March 8, 2023.
9 The plaintiffs filed their own BBO complaint against Williams
regarding her representation of Nellie Barbacki but the
complaint was dismissed.
10 The panelists are listed in order of seniority.
6