DocketNumber： 95-1933
Filed Date： 4/3/1996
Status： Precedential
Modified Date： 3/3/2016
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1933
INGRID A. M. FRANCIS AND ROBERT FRANCIS,
Plaintiffs, Appellants,
v.
DAVID GOODMAN AND KAREN DUNNETT,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge] ___________________
[Hon. Reginald C. Lindsay, U.S. District Judge] ___________________
____________________
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
and Cyr, Circuit Judge. _____________
____________________
Loretta M. Smith, with whom Charles A. Goglia, Jr. and William E. ________________ ______________________ __________
Ryckman, Jr. were on brief for appellants. ____________
Hilary B. Miller for appellees. ________________
____________________
August 1, 1996
____________________
CYR, Circuit Judge. Following our remand for findings CYR, Circuit Judge. _____________
of fact and conclusions of law, see Francis v. Goodman, 81 F.3d 5 ___ _______ _______
(1st Cir. 1996), the district court found that Rose had
established the predicate for diversity jurisdiction under 28
U.S.C. 1332(a)(1) (1994), id. at 6-7. As its determination ___
that Rose intended to remain a New York domiciliary is not
clearly erroneous, Lundquist v. Precision Valley Aviation, Inc., _________ _______________________________
946 F.2d 8, 11 (1st Cir. 1991), we affirm the district court
judgment.
The district court considered the appropriate factors
in determining Rose's domiciliary intent. See Bank One, Tex., ___ ________________
N.A. v. Montle, 964 F.2d 48, 50 (1st Cir. 1992) (listing ____ ______
factors), opinion after remand, 974 F.2d 220 (1st Cir. 1992). _______ _____ ______
Although Rose owned a home, practiced law, and lived on Nantucket
for a number of years, he owned a home in New York (where he kept
his most valuable possessions), retained his bar membership and
driver's license in New York, and maintained the bulk of his bank
and investment accounts, filed tax returns, and continued to vote
in New York by absentee ballot, see id. (voter registration a ___ ___
"weighty" factor). The district court thus possessed diversity
jurisdiction. See Anderson v. City of Bessemer City, 470 U.S. ___ ________ _____________________
564, 574 (1985) ("Where there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous.").
In 1984, Francis and her son inherited a commercial
property on Main Street, Nantucket. She met Rose in August 1985
2
and an intimate relationship developed. Rose obtained a Benetton
clothing franchise in late 1985, and asked Francis if Rose's
company, Nanben Corporation ("Nanben"), could operate a retail
store at Francis' Main Street location. Individually represented
by retained counsel, the parties negotiated and entered into a
lease on March 6, 1986. During this time, Francis began living
with Rose. She worked with him at the store as well.
In November 1989, Nanben failed to pay the monthly rent
due Francis. Rose explained that he owed Benetton for spring and
summer inventory. In April 1990, with Nanben four months behind
in its rent, Francis told Rose: "You owe me a lot of money here,
and I want to do something. Should I do something?" Rose
responded, "No, you don't have to do anything. Trust me. Just
have patience. You will get paid." Despite similar assurances
from Rose, Nanben continued to lag behind in rent payments
through April 1991.
In late June 1991, Francis and Rose stopped living
together but remained friends. Rose had handled various legal
matters for Francis during their intimate relationship, but in
June 1992 Francis again consulted the attorney who had negotiated
the store lease, and decided to initiate a summary eviction
action against Nanben. Nanben promptly sought refuge in the
bankruptcy court, and although Francis eventually regained
possession of the store, she was unable to collect a $92,898
judgment for unpaid rent and costs, which precipitated this
diversity action charging Rose with malpractice for failing to
3
advise Francis to seek independent representation regarding the
unpaid store rent.
4
The action was tried before the district court
(Lindsay, J.), without a jury. Following the case in chief, the
district court ruled that Francis had never established an
attorney-client relationship with Rose. The court entered
judgment for Rose under Fed. R. Civ. P. 52(c) ("If during a trial
without a jury a party has been fully heard on an issue and the
court finds against the party on that issue, the court may enter
judgment as a matter of law against that party with respect to a
claim . . . that cannot under the controlling law be maintained .
. . without a favorable finding on that issue. . . ."). Francis
appealed.
All agree that Massachusetts law governs the Francis
malpractice claim. See One Nat'l Bank v. Antonellis, 80 F.3d ___ ______________ __________
606, 608 (1st Cir. 1996) (court ordinarily applies governing law
agreed upon by parties). As a general rule, an attorney cannot
be found liable for malpractice absent a breach of duty to the
client. DeVaux v. American Home Assur. Co., 444 N.E.2d 355, 357 ______ ________________________
(Mass. 1983). Nor is it sufficient to show that an attorney-
client relationship existed as to an unrelated matter; rather,
the plaintiff must prove that the relationship existed with
respect to the act or omission which forms the basis for the
malpractice claim. Symmons v. O'Keeffe, 644 N.E.2d 631, 639 _______ ________
(Mass. 1995); Robertson v. Gaston Snow & Ely Bartlett, 536 N.E.2d _________ __________________________
344, 348-49 (Mass.) (prior representation insufficient), cert. _____
denied, 493 U.S. 894 (1989). ______
Absent an express agreement to provide legal services,
5
an attorney-client relationship may be implied when "(1) a person _______
seeks advice or assistance from an attorney, (2) the advice or
assistance sought pertains to matters within the attorney's
professional competence, and (3) the attorney expressly or ___ ___ ________
impliedly agrees to give or actually gives the desired advice or _________ ______ __ ____ __ ________ _____ ___ _______ ______ __
assistance." DeVaux, 444 N.E.2d at 357 (emphasis added) __________ ______
(quotation omitted). In appropriate cases, the third element may
be established by proving that the attorney knew that the
plaintiff reasonably relied on the attorney to provide legal
services, but did nothing to prevent the detrimental reliance.
Sheinkopf v. Stone, 927 F.2d 1259, 1264-68 (1st Cir. 1991).1 _________ _____
We find no clear error. Francis never told Rose that
she wanted legal advice with respect to the store rent, nor did
Rose bill her for such legal advice. See Symmons, 644 N.E.2d at ___ _______
639. At trial, Francis conceded that Rose was merely a tenant at
the time she spoke with him concerning the unpaid store rent. On
the other hand, she testified that she thought Rose was her _______
attorney when she asked him during the same conversation whether
she should "do something" about the store rent. But see ___ ___
Sheinkopf, 927 F.2d at 1265 (requiring more than "subjective, _________
unspoken belief" that person is acting in legal capacity).
____________________
1Whether an attorney-client relationship exists presents an
issue of fact under Massachusetts law. Page v. Frazier, 445 ____ _______
N.E.2d 148, 152 (Mass. 1983). Thus, Francis must demonstrate
clear error in the district court finding that there was no
attorney-client relationship. See Fed. R. Civ. P. 52 advisory ___
committee's note to 1991 Amendment (mandating "clear error"
review of factual findings); Atlantic Track & Turnout Co. v. ______________________________
Perini Corp., 989 F.2d 541, 543 (1st Cir. 1993) (same). ____________
6
Moreover, Francis testified: "I believed that [Rose] would give
me good advice since we were an item."
On this record, we cannot disturb the well-supported
district court finding that Rose had no reason to know that
Francis was seeking legal advice from him, as opposed to an
appraisal of his company's financial ability, as her tenant, to
pay the store rent, and that the trust Francis placed in Rose was
due, in large part, to their intimate relationship. Thus, the
district court correctly concluded that the failure to establish
an attorney-client relationship with respect to the store rent
foreclosed Francis' malpractice claim. See Symmons, 644 N.E.2d ___ _______
at 639; DeVaux, 444 N.E.2d at 357. ______
Affirmed. The parties shall bear their own costs. ________ _______________________________________
SO ORDERED. SO ORDERED. __________
7
Warren B. Sheinkopf v. John K.P. Stone Iii, Etc. , 927 F.2d 1259 ( 1991 )
Atlantic Track & Turnout Company v. Perini Corporation , 989 F.2d 541 ( 1993 )
Bank One, Texas, N.A. v. Paul J. Montle , 964 F.2d 48 ( 1992 )
One National Bank v. Joseph M. Antonellis , 80 F.3d 606 ( 1996 )
Anderson v. City of Bessemer City , 105 S. Ct. 1504 ( 1985 )
Courtney J. Lundquist v. Precision Valley Aviation, Inc. , 946 F.2d 8 ( 1991 )