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-1193

PAMELA CRESTA

vs.

ADELIO DEMIRANDA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment of the Superior Court 

dismissing her 2022 legal malpractice complaint against the 

defendant lawyer, whose representation of the plaintiff in a 

medical malpractice tort action concluded in 2005. The judge 

ruled that the plaintiff's 2022 complaint was barred by res 

judicata due to a 2019 suit the plaintiff had brought against 

the defendant (among others) raising the same issues. 

Additionally, the judge ruled that the 2022 action suffered from 

some of the same infirmities that led to the dismissal of the 

2019 action, in particular that it was filed well beyond the 

three year statute of limitations governing legal malpractice 

claims, G. L. c. 260, § 4. We affirm.

Discussion. "We review the allowance of a motion to 

dismiss de novo." Magliacane v. Gardner, 483 Mass. 842, 848 
2

(2020), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 

674, 676 (2011). "For purposes of that review, [in addition to] 

accept[ing] as true the facts alleged in the plaintiffs' 

complaint and any exhibits attached thereto, [we] draw[] all 

reasonable inferences in the plaintiffs' favor." Magliacane, 

supra, quoting Revere v. Massachusetts Gaming Comm'n, 476 Mass. 

591, 595 (2017).

1. Res judicata. "The term 'res judicata' includes both 

claim preclusion and issue preclusion. Claim preclusion makes a 

valid, final judgment conclusive on the parties and their 

privies, and prevents relitigation of all matters that were or 

could have been adjudicated in the action. This is based on the 

idea that the party to be precluded has had the incentive and 

opportunity to litigate the matter fully in the first lawsuit. 

The invocation of claim preclusion requires three elements: (1) 

the identity or privity of the parties to the present and prior 

actions, (2) identity of the cause of action, and (3) prior 

final judgment on the merits" (quotations and citations 

omitted). Kobrin v. Board of Registration in Med., 444 Mass. 

837, 843 (2005).

On appeal, the plaintiff argues that the judge erred in his

res judicata analysis because the prior case had different 

issues and there was never any final judgment on the merits. 

The plaintiff contends that the 2019 complaint dealt with the 
3

defendant's deficient representation during the tort action, 

whereas the 2022 complaint deals with "the continued 

misrepresentation and spoliation of evidence engaged in by the 

Defendant through the present moment." Notwithstanding the 

plaintiff's characterization, we agree with the motion judge 

that a comparison of the 2019 complaint and the 2022 complaint 

reveals that the claims against the defendant are identical. 

Moreover, the prior complaint was dismissed for failure to state 

a claim pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 

(1974), which constitutes a final judgment on the merits for 

purposes of res judicata. See Howard v. Boston Water & Sewer 

Comm'n, 96 Mass. App. Ct. 119, 124 (2019). Dismissal based on 

res judicata was therefore proper.

2. Statute of limitations. Although we need not reach the 

statute of limitations issue, we nevertheless address the 

plaintiff's contention on appeal that her complaint was not 

time-barred because the "continuing representation" doctrine 

tolled the running of the statute of limitations. The 

continuing representation doctrine tolls the limitations period 

in legal malpractice actions where the attorney in question 

continues to represent the plaintiff's interests in the matter 

in question. See Frankston v. Denniston, 74 Mass. App. Ct. 366, 

377 (2009). For example, in Murphy v. Smith, 411 Mass. 133, 137 

(1991), a lawyer represented to homeowners that they had good 
4

record title to property. Subsequently, they learned that a 

neighbor claimed a right to the property. Although the 

homeowners were on notice at that point that they may have been 

harmed, ordinarily triggering the running of the limitations 

period, the statute of limitations was tolled because the lawyer 

who made the representation of good record title told the 

homeowners that the neighbor's claim was not a problem and that 

he would take care of it. Id. There, the court recognized that 

a person seeking professional assistance cannot be expected to 

question a lawyer in which he has placed his confidence. The 

court thus held that the limitations period did not begin to run 

until the termination of the undertaking. Id.

Here, the defendant's undertaking on behalf of the 

plaintiff terminated when he received permission to withdraw 

from the case in 2005. There is no allegation in the complaint 

that the defendant represented her interests in any capacity 
5

after that point. Thus, the continuing representation doctrine

provides no ground for tolling in the plaintiff's case.

Judgment affirmed.

By the Court (Vuono, Singh & 

Englander, JJ.1),

Assistant Clerk

Entered: February 12, 2024.

1 The panelists are listed in order of seniority.