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Case Information
Filed
2024-10-17
Status
Open
Type
Malpractice Other
Docket
19 entries
Parties
Plaintiff
Frederick, Gregory
Defendant
David J R Ulwick
Lawyers
Docket Entries
- Endorsement on Motion to Dismiss And Incorporated Memorandum Of Law (#7.0): ALLOWED In the instant matter, the plaintiff, Gregory Frederick, acting as "proxy" for his mother Greta Frederique, seeks to bring a two count complaint alleging legal malpractice and breach of fiduciary duty by an attorney (David Ulwick) appointed to represent her interests in a guardianship petition filed and heard in the Suffolk County Probate Court. In response, Ulwick has filed a motion to dismiss pursuant to Mass Rule of Civ. P 12(b)(1) and 12(b)(6). In deciding this motion, the Court need not move past the 12(b)(1) challenge. "Standing is an issue of subject matter jurisdiction that is properly challenged by way of a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)." Indeck Maine Energy, LLC v. Commissioner of Energy Resources, 454 Mass. 511, 516 (2009). To have standing, a litigant must show the challenged behavior has caused the litigant injury. Ginther v. Commissioner of Ins., 427 Mass. 319, 232 (19998). In the instant matter, Frederick was never represented by Ulwick. As such, Ulwick cannot assert a claim of legal malpractice for Ulwick's alleged negligence while representing his mother Frederique. By the same logic, as Ulwick had no relationship with Frederick, it is impossible for him to have breached a non-existent fiduciary duty. Further, as Frederique has already been appointed a guardian, there is already a party in place who could assert the same claims, thus no equitable "jus tertii" standing claim exists. Finally, Frederick, acting pro se, cannot represent Frederique. Frederick's reliance upon G.L. c. 190B section 5-101 is misplaced. Section 5-101[Definitions and inclusions] provides only definitions to be applied in interpreting Article V of the Massachusetts Uniform Probate Code. While section 5-106(d) [Appointment of counsel; guardian ad litem] allows that "Any person may apply for permission to provide information in the [probate] proceeding" involving the appointment of counsel, it does not grant such "person" standing to bring suit in the Superior Court. Accordingly, Ulwick's motion is Allowed, and this matter is Ordered Dismissed. (dated 3/20/2025) Notice sent 3/25/25
- Case assigned to: DCM Track A - Average was added on 10/17/2024
- Affidavit of Indigency and request for waiver substitution of state payment of fees and costs filed without Supplemental affidavit ALLOWED.
- Original civil complaint filed.
- Civil action cover sheet filed.
- Affidavit In Support Of Complaint For Legal Malpractice And Breach Of Fiduciary Duty
- Gregory Frederick's Memorandum in support of Complaint For Legal Malpractice And Breach Of Fiduciary Duty
- Defendant David J R Ulwick's Notice of Motion to Dismiss Plaintiff's Complaint Pursuant to Superior Court Rule 9E
- Attorney appearance On this date Michael Hayden, Esq. added for Defendant David J R Ulwick
- Attorney appearance On this date Daniel J Ashby, Esq. added for Defendant David J R Ulwick
- Service Returned for Defendant David J R Ulwick: Service made at last and usual;
- Notice Of Filing
- Defendant David J R Ulwick's Motion to dismiss And Incorporated Memorandum Of Law (Mass. R. Civ. P. 12(b)(1) and 12(b)(6))
- Affidavit Of Compliance With Superior Court Rule 9A
- Plaintiff Gregory Frederick's Motion for Leave To File Late Opposition To Defendant's Motion To Dismiss
- Plaintiff Gregory Frederick's Memorandum of Opposition To Defendant's Motion to Dismiss
- Affidavit Applies To: Frederick, Gregory (Plaintiff)
- Event Result:: Rule 12 Hearing scheduled on: 03/19/2025 02:00 PM Has been: Held as Scheduled Hon. Christopher Belezos, Presiding Staff: Timothy C Walsh, Assistant Clerk Magistrate
- JUDGMENT on Defendants, David J R Ulwick 12(b) motion to dismiss against Plaintiff(s) Gregory Frederick. It is ORDERED and ADJUDGED: This Matter is ORDERED DISMISSED Entered on docket pursuant to Mass R Civ P 58(a) and notice sent to parties pursuant to Mass R Civ P 77(d)
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