Pyche v. Howe ( 1992 )


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  • USCA1 Opinion





    July 1, 1992 [NOT FOR PUBLICATION]






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    No. 91-2338

    THOMAS J. PYCHE,

    Plaintiff, Appellant,

    v.

    RICHARD HOWE, ET AL.,

    Defendants, Appellees.


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    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Rya W. Zobel, U.S. District Judge]
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    ____________________

    Before

    Breyer, Chief Judge,
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    Selya and Cyr, Circuit Judges.
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    Thomas J. Pyche and Sharon L. Pyche on brief pro se.
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    Harvey Weiner, Barry D. Ramsdell, and Peabody & Arnold, on brief
    _____________ _________________ ________________
    for appellee Richard P. Howe.
    Thomas E. Sweeney on brief for appellee Brian Barry.
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    Per Curiam. Pro se plaintiffs Thomas and Sharon Pyche
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    filed this action for legal malpractice and conspiracy to

    commit fraud against attorneys Richard Howe and Brian Barry

    and Barry's client Daniel Desrochers. The district court

    entered summary judgment for attorney Howe and dismissed the

    claims against the remaining defendants with prejudice. We

    affirm.

    This case arose from defendant Desrochers' alleged

    breach of an agreement with plaintiff Thomas Pyche (Pyche).

    On July 9, 1986, Pyche sold Desrochers a duplex home at 124 D

    Street in Lowell, Massachusetts for $105,000, a price

    allegedly below the property's fair market value.1 Under

    the terms of their agreement, Desrochers agreed to allow

    Pyche's elderly parents to continue to reside at the property

    and to participate in the federally subsidized "Section 8"

    rental assistance program. Desrochers agreed to comply with

    any Section 8 requirements. Pyche agreed to pay his parents'

    share of the $350 monthly rent. Implicit in this poorly

    drafted agreement is the assumption that the Section 8

    program would pay the balance of Pyche's parents' rent. The

    agreement also gave Pyche a right of first refusal should

    Desrochers wish to sell the property while Pyche's parents

    were still living there.




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    1. The property is also described as 146 Warwick Street.

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    Pyche paid his parents' rent for July and August 1986.

    Thereafter, for reasons that are not clear, the deal went

    sour.2 Desrochers instituted eviction proceedings against

    Pyche's parents in Lowell district court. Attorney Barry

    represented Desrochers in these proceedings. The summary

    process complaint alleged that Pyche's parents were five

    months in arrears in their rent. Pyche engaged attorney Howe

    to represent his parents in the eviction proceeding and to

    institute a separate breach of contract action against

    Desrochers on Pyche's own behalf.

    To cut to the chase, the eviction proceeding resulted in

    a judgment for Desrochers. Attorney Howe filed a separate

    action against Desrochers on Pyche's behalf. The complaint

    in this breach of contract action alleged that Pyche sold the

    property to Desrochers for substantially less than its fair

    market value in return for Desrochers' promise that Pyche's

    parents could live there as long as they desired and that he

    (Desrochers) would help them secure Section 8 housing

    assistance. Desrochers allegedly breached this agreement by

    failing to help Pyche's parents secure Section 8 payments and

    by evicting Pyche's parents. Pyche claimed $50,000 damages

    for Desrochers' unjust enrichment.


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    2. Pyche says that Desrochers refused to sign certain rent
    receipts to enable Pyche's parents to obtain Section 8
    payments. Desrochers claimed that Pyche asked him to falsify
    the rent receipts to reflect that Pyche's parents paid the
    rent when, in fact, Pyche was paying the rent.

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    After this breach of contract action had been pending

    before the Middlesex superior court for almost two years,

    Pyche instructed attorney Howe either to move for summary

    judgment or withdraw. Attorney Howe was allowed to withdraw

    by a May 3, 1989 court order. Pyche represented himself in a

    bench trial. On September 21, 1989, the superior court

    issued a decision in favor of Desrochers. The superior court

    specifically found that Desrochers instituted eviction

    proceedings after the Pyches were five months in arrears on

    their rent and that Pyche failed to prove that Desrochers

    interfered with the normal processing of the section 8

    application Pyche's parents had filed. The court concluded

    that "[t]he evidence is insufficient to warrant any finding

    that the defendant breached either provision of the sales

    agreement with respect to Pyche's parents." Judgment entered

    for Desrochers on October 2, 1989.

    The Pyches filed the instant federal action in November

    1990. Their complaint alleged that the defendants had

    "engag[ed] in acts of conspiracy, fraud, misuse of the legal

    process, collusion, legal malpractice, obstruction of justice

    and racketeering." The Pyches specifically claimed that Howe

    lost the eviction proceeding unnecessarily and failed to

    place a lien on the property (thereby facilitating

    Desrochers' resale). Pyche reiterated his claim that

    Desrochers breached their agreement and alleged that



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    Desrochers and attorney Barry filed a fraudulent motion for

    summary judgment in the eviction case. The complaint also

    alleged that Barry failed to respond to Pyche's questions in

    the summer of 1986 (when Pyche and Desrochers were disputing

    the propriety of section 8 receipts). Both the Pyches and

    Howe filed motions for summary judgment. Barry moved to

    dismiss under Fed. R. Civ. P. 12 (b)(6). Desrochers was

    never served with the complaint as he apparently left Lowell

    for parts unknown. In a series of margin orders, the

    district court (1) allowed Howe's motions for summary

    judgment on the claims of Thomas and Sharon Pyche, (2)

    allowed Barry's motion to dismiss, and (3) sua sponte
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    dismissed the complaint against Desrochers. The Pyches filed

    numerous post-judgment motions and a petition for mandamus

    which resulted in this appeal.3

    Apart from the conclusory allegations of fraud, Pyche's

    claim against Howe essentially boils down to one of legal

    malpractice. The district court allowed Howe's motion for

    summary judgment on the grounds that the Massachusetts


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    3. In resolving the Pyches' petition for mandamus, this
    court ordered that Pyche's "Notice of Intention to File an
    Appeal" be treated as a notice of appeal. Howe has moved to
    dismiss Sharon Pyche's appeal on the ground that she did not
    sign this notice, even though she is named in the caption.
    The district court granted Howe's motion for summary judgment
    on Sharon Pyche's claim on the ground that he did not have an
    attorney-client relationship with her. As the record
    supports this, we elect to affirm this ruling on its merits
    and thus need not decide the jurisdictional issue. See
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    Norton v. Mathews, 427 U.S. 524, 530-32 (1976).
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    superior court's judgment for Desrochers in the breach of

    contract action collaterally estopped Pyche from relitigating

    issues related to the eviction. Consequently, Pyche could

    not prevail in his malpractice claim because he was

    collaterally estopped from proving that he would have

    recovered on his underlying claim against Desrochers.

    This ruling was correct. Under Massachusetts law, "[a]

    client in a malpractice action based on an allegation of

    attorney negligence must show that, but for the attorney's

    failure, the client probably would have been successful in

    the prosecution of the litigation giving rise to the

    malpractice claim." Colucci v. Rosen, Goldberg, Slavet,
    _______ _________________________

    Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987).
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    Pyche contends that but for Howe's negligent failure to

    attach the property and assert Desrochers' alleged breach of

    contract as a counterclaim in the eviction proceeding, his

    parents would not have been evicted, and Pyche would not have

    lost his claim to the property. But the superior court

    decided that Desrochers did not breach his agreement with

    Pyche by evicting Pyche's parents.4 This finding is binding

    and entitled to preclusive effect in this proceeding. See
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    4. We think this finding is apparent both from the language
    of the court's decision (finding that Desrochers did not
    breach "either provision" of the sales agreement, i.e., the
    section 8 provision, and the provision concerning the term of
    the tenancy) and the transcript of the trial in this
    proceeding.

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    Martin v. Ring, 401 Mass. 59, 61-62 (1987). As Pyche is
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    foreclosed from proving that Desrochers breached their

    agreement by evicting Pyche's parents, Pyche cannot prevail

    on his claim that attorney Howe negligently failed to assert

    this breach in the eviction proceeding. Accordingly, the

    judgment for attorney Howe must be affirmed.

    Pyche's remaining claim asks that this court find fraud

    from the fact that Pyche was not successful in his previous

    action against Desrochers. The complaint was wholly

    insufficient to state a viable fraud claim against any of the

    defendants. Pyche's motions to amend his complaint did not

    cure these defects. Pyche remains collaterally estopped from

    relitigating his claim against Desrochers.

    Having reviewed the entire record, we discern no error.

    Accordingly, the judgment of the district court is

    affirmed.5
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    5. This moots Howe's motions to strike the addendum to the
    Pyches' reply brief and the transcript of Pyche's superior
    court trial. We accepted the latter under E.I Dupont De
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    Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir.
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    1986)(federal courts may take notice of proceedings in other
    courts if those proceedings have a direct relation to matters
    at issue). The transcript indicates that Pyche had a full
    and fair opportunity to litigate his claims against
    Desrochers.

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Document Info

Docket Number: 91-2338

Filed Date: 7/1/1992

Precedential Status: Precedential

Modified Date: 9/21/2015