Brissette v. Ryan

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14-P-919 Appeals Court
MARIE D. BRISSETTE vs. EDWARD J. RYAN, JR., & another.1
No. 14-P-919.
Hampden. December 8, 2014. - October 29, 2015.
Present: Rubin, Milkey, & Sullivan, JJ.
Practice, Civil, Judgment notwithstanding verdict. Negligence,
Attorney at law. Attorney at law, Malpractice. Real
Property, Life estate.
Civil action commenced in the Superior Court Department on
September 7, 2010.
The case was tried before Edward J. McDonough, Jr., J., and
a motion for judgment notwithstanding the verdict was heard by
him.
Roger J. Brunelle for the plaintiff.
Richard L. Neumeier for the defendants.
RUBIN, J. After a Superior Court trial in this legal
malpractice case, a jury found that the primary defendant,
Edward J. Ryan, Jr., was negligent in his representation of the
plaintiff, Marie D. Brissette, and awarded damages to her in the
1
The law firm of Ryan, Boudreau, Randall, Kirkpatrick &
Baker, LLP.
2
amount of $100,000 against Ryan and his law firm, Ryan,
Boudreau, Randall, Kirkpatrick & Baker, LLP (law firm)
(collectively, defendants).2 The defendants filed a motion for
judgment notwithstanding the verdict (n.o.v.) which was allowed
by the trial judge, who ordered judgment to enter for the
defendants. Marie3 has appealed. We reverse, and order
reinstatement of the verdict in favor of Marie.
1. Facts. Viewing the evidence in the light most
favorable to Marie, the jury could have found the following
facts. See Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass.
91, 94 n.5 (2009). In 1994, Marie and her husband Robert
(collectively, Brissettes), consulted Ryan for advice about how
to protect their home in South Hadley from Medicaid4 liens in the
event that either needed long-term care. Ryan advised them that
they could transfer the title to their property to their four
adult children with reserved life estates to protect themselves
from Medicaid liens. He advised them that transferring title
2
The parties stipulated that the law firm, the limited
liability partnership at which Ryan was practicing at the time
of the alleged malpractice, was vicariously liable for any
negligence on Ryan's part.
3
Because several parties share the same surname, we use
their first names to avoid confusion.
4
At trial, and in this opinion, the references to the rules
and regulations of the Federal Medicaid program incorporate the
rules and regulations of MassHealth, the State-provided health
insurance program.
3
for less than adequate consideration would have a negative
impact on them if they applied for Medicaid within three years.
The Brissettes followed this advice, transferring the property
to their children and reserving life estates for themselves.
Their children signed a deed transferring the house back to
them, which Ryan held in escrow, to be kept there until the
Brissettes wanted to sell the South Hadley house.
Thirteen years later, in July of 2007, the Brissettes and
two of their four children, Paul Brissette and Cynthia
Parenteau, met at Ryan's office to discuss the Brissettes'
desires to sell the South Hadley home and to buy property
located in Springfield. They discussed the prospect of putting
the Springfield property in the names of Paul and Cynthia. Ryan
told the Brissettes that if they reserved life estates in the
Springfield property, they could be ineligible for Medicaid if
they applied any time within five years of getting the life
estates. He also told them that if they took life estates in
the Springfield property, there could be a Medicaid lien against
that property when they died. There was evidence that the
Brissettes asked about "protection," but Ryan told them that he
did not feel that the Brissettes needed protection because they
could trust their children to do what they wanted them to do.
In reliance on Ryan's advice, the Brissettes decided that the
Springfield property would be bought with their money but put in
4
Paul's and Cynthia's names, and that the Brissettes would not
have life estates in the Springfield house.
The jury could have found, as Ryan conceded at trial, that
Ryan's advice was wrong both about ineligibility for Medicaid
and about the possibility of a posthumous Medicaid lien against
the property had the Brissettes reserved life estates in the
Springfield property. An expert witness testified that not only
was Ryan's advice wrong, but that it was below the standard of
care applicable to the average qualified attorney advising
clients on Medicaid planning. The jury also could have found
based on the expert's testimony that it would have been possible
to structure the transaction using a testamentary power of
appointment which would have given the Brissettes the right to
change the remaindermen and which would have provided them with
leverage over Paul and Cynthia. We express no opinion on the
merits of the advice given by Ryan, which is not at issue in
this appeal, nor on the merits of the expert's proffered advice
on Medicaid planning. There was evidence both in the form of
concessions by Ryan and in the form of expert testimony that his
advice was wrong.
Paul took out a loan on his own house to finance the
purchase of the Springfield house; the Springfield house deed
was taken in Paul's and Cynthia's names as joint tenants on
August 14, 2007. Ryan released the deed that transferred the
5
South Hadley property back to the Brissettes. The Brissettes
then sold the South Hadley home, and on September 14, 2007, used
the proceeds to reimburse Paul (with interest) for his purchase
of the Springfield house in the amount of $193,476. Due to
Ryan's advice, the Brissettes did not take out life estates,
receiving, in Marie's words, "absolutely nothing" in return for
$193,000 (without the interest).
The next year, Robert passed away. Marie concluded that
she wished to own the Springfield house in her own name. Paul
and Cynthia declined to transfer the house to Marie.
Marie, of course, does not have a life estate in the
Springfield property. In 2010, Cynthia transferred her interest
in the property to a revocable trust of which she was the
trustee. The trust contains a provision stating, "Marie D.
Brissette shall have the opportunity to reside in the subject
premises owned by this Trust for as long as she so desires." It
also provides that "[i]n the event that Marie D. Brissette
should choose to no longer reside in the subject premises, and
the premises are sold, then the Trustee shall not be required to
provide distributions to Marie D. Brissette." The trustee,
however, may amend the trust at any time.
As to Paul, although he declined to transfer his interest
to Marie, sometime in June of 2013 he executed a series of
documents the benefit of which he offered to Marie. These
6
documents purported to offer her the right to live in the house
but not the right to sell, lease, or mortgage it for interest,
and the documents also provided that her rights would be
forfeited if she failed to live in the house for three
consecutive months, or for 180 days in any calendar year. A
life estate, of course, includes far more than what Paul
offered, which was essentially a conditional right to live on
the premises.5
At trial, Marie's theory of damages was that, but for
Ryan's negligence, she would have obtained a life estate for the
$193,000 that she and Robert paid to Paul. Instead of a life
estate, she argued, she had no legally cognizable interest,
which subjected her to the risk of being forced to move out of
the house by Paul and Cynthia, or by anyone who succeeded their
interests, such as a judgment creditor or a buyer. Unlike one
with a life estate, Marie did not have the ability to rent the
house, or to apply for an equity loan. Finally, she argued
that, although she would have been able to do so if she held a
life estate, she had no power to change the disposition of the
5
"The owner of a possessory life estate, i.e., the life
tenant, has a right to the exclusive possession of the land.
And if a remainder interest has been created, during the
existence of the life estate the remainderman is not entitled to
possession until the death of the life tenant. A life estate is
alienable by the life tenant, and he can accordingly convey his
estate to a third person, or mortgage it, or lease it for a term
of years." Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 88
n.20 (2008) (citations omitted).
7
Springfield house when she died. The jury found Ryan6 liable and
set damages at $100,000.
2. Judgment n.o.v. motion. The defendants moved for
judgment n.o.v., arguing that Ryan's negligence did not cause
Marie any actionable harm. The judge agreed, concluding that
Marie had submitted "no proof of actual damages" as a result of
Ryan's negligence. The judge noted that Paul and Cynthia both
testified that each never would evict Marie, which, the judge
reasoned, "estops both from taking the opposite position in a
later legal proceeding," a question we need not decide. The
judge noted that while the jury could have found that Marie's
residency at the property was subject to certain terms, she has
not "provided any evidence tending to show that she intends to
violate those terms." The judge concluded that Marie, still
living in the house, had not proved "actual damages," but that
she had "merely proven 'negligence in the abstract,'" citing
International Mobiles Corp. v. Corroon & Black/Fairfield &
Ellis, Inc., 29 Mass. App. Ct. 215, 217 (1990). The judge
concluded that "a loss of rights" requires additional proof of
actual damages, and that Marie's unease that Paul and Cynthia
might someday seek to evict her amounted only to "emotional
distress damages" that, the jury were instructed without
6
The law firm was liable as well. See note 2.
8
objection, were not recoverable for legal malpractice in the
circumstances of this case.7
3. Discussion. "Judgment notwithstanding the verdict is
to be granted cautiously and sparingly." Matley v. Minkoff, 68
Mass. App. Ct. 48, 52 (2007). In evaluating a defendant's
motion for judgment n.o.v., "we consider whether anywhere in the
evidence, from whatever source derived, any combination of
circumstances could be found from which a reasonable inference
could be drawn in favor of the plaintiff." Haddad, 455 Mass. at
94 n.5 (citations omitted). The judge concluded, and the
defendants argue here, that Marie did not suffer the
"appreciable harm" that triggers the accrual of a cause of
action for legal malpractice. Cantu v. St. Paul Cos., 401 Mass.
53, 57 (1987). What is required is "injury, loss or detriment
that is capable of being measured or perceived." Kennedy v.
Goffstein, 62 Mass. App. Ct. 230, 233 (2004) (citation omitted).
Here, the jury were entitled to conclude that as a
proximate and reasonably foreseeable result of Ryan's
negligence, Marie failed to obtain a valuable property right she
otherwise would have: a life estate in the Springfield house.
Deprivation of such a property right is actual damage that is
cognizable in a tort action such as this. The value of a
7
The availability of emotional distress damages in this
case is something we need not address and do not decide in light
of our disposition.
9
property right lies in, among other things, the rights it gives
one to possession and to free alienation of the property.
Deprivation of those rights is, under our legal system, an
archetypal injury in fact. See, e.g., Blood v. Nashua & Lowell
R.R. Corp., 2 Gray 137, 139-140 (1854) (Shaw, C.J.) (tortious
interference with right incident to property ownership amounts
to legally cognizable injury); Commissioner of Pub. Health v.
Bessie M. Burke Memorial Hosp., 366 Mass. 734, 743 (1975)
(Kaplan, J.) ("diminish[ing] or defeat[ing] an existing property
interest" does an individual "injury"). Our Supreme Judicial
Court opined more than 160 years ago that "the conversion or
tortious taking" of an individual's stock certificate was
actionable. Smith v. Hurd, 12 Met. 371, 386 (1847). In that
circumstance, the individual need not wait until he or she would
have sold the stock to demonstrate damage. Ibid. The property
interest in the certificate has value, and its deprivation works
"injury." Ibid.
So it is with the life estate in this case. It is no
answer to Marie's claim against Ryan that but for his negligence
she would have a life estate to say that it does not matter
because her children allow her to live in the house at their
sufferance. The latter fact may be a question to submit to the
jury that must determine the value of the lost life estate. But
the fact that because of Ryan's negligence she has no right to
10
alienate the property during her lifetime by, for example,
renting or mortgaging it, means that she did not obtain
something of value that she otherwise would have. She is
damaged by that loss and should properly be compensated for it,
even without proof that she had present plans to exercise her
right to alienation.
This is thus not a case in which Ryan committed only
"negligence in the abstract," because no harm yet has accrued to
Marie. International Mobiles Corp., 29 Mass. App. Ct. at 217.
When a tortious act prevents someone from obtaining a valuable
life estate, that individual has suffered damage and a
cognizable injury for which she is entitled to redress.8 That
suffices to resolve this case.9
8
The defendants argue in the alternative that Marie failed
to mitigate completely her damages by taking Paul's offer, as
described in the text, supra. We disagree. The offer contained
restrictions that rendered it less than equal to a life estate.
9
Although the decision below might be read to rest in the
alternative on the ground that the amount of damages was
speculative, we do not address the issue. The defendants have
not raised any argument before us that the amount of damages was
speculative, and therefore that argument is waived. See
Commonwealth v. Swartz, 454 Mass. 330, 336 n.5 (2009)
(alternative ground for affirmance not argued before appellate
court deemed waived); U.S. Bank Natl. Assn. v. Schumacher, 467
Mass. 421, 426 n.10 (2014) (potentially dispositive issue not
raised in party's appellate brief deemed waived), citing
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See
also Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97
(1985). Furthermore, the defendants did not make any argument
about the amount of damages in their motion for a directed
verdict, and thus, to the extent the judge did rely on any such
11
The order granting judgment n.o.v. is reversed, and the
jury's verdict awarding damages to Marie is reinstated.
Judgment is to enter for Marie consistent with the jury verdict.
So ordered.
argument, it was an improper ground for granting judgment n.o.v.
Matley, 68 Mass. App. Ct. at 52 (reversing where "the basis upon
which the defendant's motion for a judgment n.o.v. was allowed
was not asserted in the motion for a directed verdict"). See
Shafir v. Steele, 431 Mass. 365, 371 (2000) ("[A] party may not
raise an issue in a motion for judgment n.o.v. that was not
raised in a motion for directed verdict"). See also
Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998) (party
moving for judgment n.o.v. does so "in accordance with [its]
motion for a directed verdict"). Requiring the asserted ground
for judgment n.o.v. to be included in a motion for directed
verdict ensures a plaintiff "an opportunity to seek leave from
the court" to "rectify any deficiencies in its case." Matley,
supra, quoting from Bonofiglio v. Commercial Union Ins. Co., 411
Mass. 31, 35 (1991). This rule prevents plaintiffs from being
"ambushed" by a defendant's new argument after the time for
submitting additional evidence to the jury is finished. Id. at
53.