DocketNumber： 91-2338
Filed Date： 7/1/1992
Status： Precedential
Modified Date： 9/21/2015
July 1, 1992 [NOT FOR PUBLICATION]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
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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,
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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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