MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On February 13, 2018, after a jury-waived trial, a judge of the Superior Court entered judgment in favor of William M. Miley and Springer Hill 1154, Inc. on claims brought against them by Mark R. Joubert, and on Mileys counterclaims against Joubert.
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On August 24, 2018, an amended judgment entered awarding attorneys fees and costs to Miley for defending against Jouberts claims. Thereafter, the trial judge issued an order denying Jouberts motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), to vacate the judgment. As we determine that, with the exception of Mileys counterclaim for money had and received, Miley did not offer proof of loss to sustain his counterclaims against Joubert, so much of the February 13, 2018 judgment as found in favor of Miley on his counterclaims for professional malpractice, fraud, negligence, and breach of fiduciary duty is reversed. The remainder of the judgment is affirmed. The August 24, 2018, amended judgment awarding attorneys fees is vacated, and the order on Jouberts postjudgment rule 60 (b) motion to vacate is affirmed.
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Background. We summarize the relevant facts, leaving certain of them for later discussion. Joubert and Miley met while performing work at the United Parcel Services (UPS) in the 1980s. The two lost touch around 1998; afterward, Joubert obtained undergraduate and graduate degrees, graduated from law school, and become a member of the Massachusetts Bar.
Subsequently, things did not go well for Joubert. In 2009, financially destitute and with nowhere to live, he contacted Miley asking for financial assistance. Miley, who had retired in 2003 or 2004, owned a six-unit apartment house in Worcester, as well as ninety-two acres of unimproved land in Leicester (Leicester property). Based on their prior friendship, Miley allowed Joubert to live rent-free in one of the apartments.
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In addition, Miley facilitated Jouberts reestablishing a law practice which Joubert operated from the apartment, advertising with a sign in the window. Miley promoted Joubert by introducing Joubert to others as “[his] lawyer,” and he asked Joubert to assist him with two minor legal problems.
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At Jouberts request, Miley loaned him $4,000, indicating on the check that the purpose of the money was a “short-term attorney loan.”
At the time Joubert resurfaced in Mileys life, Miley hoped to develop the Leicester property as a source of alternative energy; he brought Joubert to see the land and they spoke about utilizing it as a solar farm. Joubert and Miley discussed the possibility of Joubert completing legal work relating to the Leicester property development for a weekly fee, although the two did not come to an agreement.
In 2011, Joubert contacted a representative from A Plus Solar, Inc. (A Plus Solar) about developing the Leicester property and introduced him to Miley.
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Joubert advised Miley that in order to contract with A Plus Solar to develop a solar farm on the Leicester property, he should transfer the property to a corporation. Although initially reluctant to do so, Miley ultimately agreed. In July 2011, Joubert drafted the documents to create a corporation, Springer Hill 1154, Inc. (Springer Hill) and to convey the Leicester property to Springer Hill. Although Miley directed Joubert to prepare the corporate documents and convey the deed to Springer Hill, unbeknownst to Miley, Joubert drafted the documents in a way intended to make himself half owner of the property. Miley, who believed Joubert to be protecting his interests, and was unaware of Jouberts efforts to obtain an ownership interest in the Leicester property, signed the documents.
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Acting on behalf of Springer Hill, Miley then signed two Option Lease Agreements (agreements) with A Plus Solar, giving A Plus Solar an option to lease the Leicester property. The following year, however, when it appeared unlikely that the project would get off the ground, Miley instructed Joubert to terminate the agreements. Joubert wrote to A Plus Solar as Miley had instructed, but in his letter, Joubert referred to himself as Mileys “partner.” Miley became angry and demanded Joubert remove the reference. Joubert drafted a second letter, claiming he had removed the word “partner.” In fact, he had simply moved the reference to a different paragraph. A Plus Solar walked away from the project, and Miley decided to dissolve Springer Hill.
Jouberts and Mileys relationship degenerated further. Joubert continued to claim ownership to half of Springer Hill and the Leicester property.
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This action followed. Joubert claimed against Miley and Springer Hill; Miley answered and counterclaimed against Joubert.
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Following a jury-waived trial, the judge found in favor of Miley and Springer Hill on each of Jouberts claims, and found in favor of Miley on each of his counterclaims. The judge ordered Joubert to pay Miley damages in the amount of the $4,000 loan with interest and awarded Miley attorneys fees and costs. This appeal followed.
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Discussion. 1. Mileys competence. We first dispose of Jouberts argument that the judge erred in failing to test Mileys competency as a witness in light of Mileys apparent memory issues while testifying at trial.
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As Joubert failed to raise the issue below, he has waived this argument. See Canton v. Commissioner of the Mass. Highway Dept, 455 Mass. 783, 795 n.18 (2010).
2. Attorney-client relationship. As we discuss, infra, we conclude that Mileys tort counterclaims fail based on the absence of any damages resulting from Jouberts conduct. Even if we did not do so, however, we would not be persuaded by Jouberts argument that the judge erred in finding for Miley on his counterclaim for professional malpractice because Miley failed to show that he and Joubert had an attorney-client relationship. “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 attorneys professional competence, and (3) the attorney expressly or impliedly agrees to give or actually gives the desired advice or assistance.’ ” Cesso v. Todd, 92 Mass. App. Ct. 131, 135 (2017), quoting DeVaux v. American Home Assur. Co., 387 Mass. 814, 817-818 (1983). See Page v. Frazier, 388 Mass. 55, 62 (1983) (attorney-client relationship “can be implied from the conduct of the parties”). “[T]he third element may be established by proof of detrimental reliance, when the person seeking legal services reasonably relies on the attorney to provide them and the attorney, aware of such reliance, does nothing to negate it.” Cesso, supra at 135, quoting DeVaux, supra at 818. “A judges ultimate conclusion as to whether an attorney-client relationship existed is a mixed question of law and fact, which we review de novo.” Patel v. Martin, 481 Mass. 29, 39 (2018). “In doing so, we accept [the] judges findings of fact ‘unless clearly erroneous,’ ” id., quoting Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996), and defer to the judges determinations of credibility. See Page, supra, at 61-62 (where oral evidence conflicts, we “give full recognition to the advantage possessed by the trial judge, who saw and heard the witnesses” [citation omitted]).
There was ample support in the record for the judges findings on each of the elements of the attorney-client relationship, and, indeed, Joubert does not challenge any of the judges findings of fact on this issue. First, there was evidence that Miley sought Jouberts assistance, initially in two legal matters unrelated to the plans for a solar farm on the Leicester property, and later in planning for the development of that land. Second, the judge heard evidence that Joubert represented, at the very least by his performance of the work, that he was capable of doing the work Miley asked him to do. Third, there was evidence at trial to show that Joubert actually gave the advice requested and did the legal work Miley asked for -- including the drafting of documents for a new corporation and the conveyance of property -- albeit while engaging in covert self-dealing in the land development plans. Additionally, the judge could consider that Joubert accepted a $4,000 “short-term attorney loan” from Miley, and that Joubert did not dispute Mileys characterization of him as his lawyer. Reviewing for clear error, see Kendall v. Selvaggio, 413 Mass. 619, 620 (1992), we discern none.
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3. Counterclaim damages. Joubert challenges the judges determinations in favor of Miley on Mileys counterclaims for professional malpractice (count I), fraud (count II), negligence (count III), and breach of fiduciary duty (count V), arguing that Miley did not demonstrate he suffered a loss as the result of Jouberts actions.
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We are constrained to agree.
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While we agree with the trial judges findings that Jouberts legal practice was substandard, that he intentionally and successfully mislead Miley in their business dealings in order to further his own financial interests, and that as Mileys lawyer, he repeatedly engaged in self-dealing when handling Mileys affairs, damages are an element of each of the counterclaims. See e.g. Van Brode Group v. Bowditch & Dewey, 36 Mass. App. Ct. 509, 517 (1994) (“a tort action cannot be sustained without proof of damages” [citations omitted]). As Miley candidly conceded at oral argument, he did not seek attorneys fees as damages during the trial of the case and did not introduce any evidence of attorneys fees until invited to do so as a posttrial filing. On appeal, he does not identify any authority supporting an award of attorneys fees as damages under these circumstances, and we are aware of none. Cf. Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept of Mental Retardation, 424 Mass. 430, 468 (1997) (“As a general rule in Massachusetts, a litigant must bear his own expenses including attorneys fees, except where a statute permits the award of costs, a valid contract [or] stipulation provides for costs, or rules concerning damages permit[ ] recovery”). Indeed, as counsel indicated at oral argument, Miley intentionally omitted argument in his brief that damages included attorneys fees.
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Accordingly, we conclude that the fact that Miley incurred attorneys fees in defending against Jouberts claims does not satisfy the “proof of damages” element necessary to establish each of Mileys tort counterclaims. In the absence of any other evidence of damages, and solely on this basis, we are constrained to vacate the judgment for Miley on his counterclaims for professional malpractice, fraud, negligence, and breach of fiduciary duty.
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Because Miley did introduce evidence supporting the judges damage award as to his claim for money had and received (the unrepaid $4,000 “short-term attorney loan” to Joubert), we affirm the judgment for Miley on that counterclaim.
4. Posttrial motions. a. Rule 60 (b) motion. Following trial, Joubert filed a motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), to vacate judgment on the grounds of newly discovered evidence. The evidence consisted of affidavits of A Plus Solar representatives Charles Jenkins and Marc Kaijala, prepared in connection with a Board of Bar Overseers investigation of Jouberts conduct undertaken in 2012. The judge denied the motion without a hearing.
“A party seeking postjudgment relief on grounds of ‘newly discovered evidence’ invokes rule 60 (b) (2), and must satisfy four requirements: ‘(1) the evidence has been discovered since the trial; (2) the evidence could not by due diligence have been discovered earlier by the movant; (3) the evidence is not merely cumulative or impeaching; and (4) the evidence is of such a nature that it would probably change the result were a new trial to be granted’ ” (citation omitted).
Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 361 (2008). “[W]e defer broadly to the [judges] informed discretion in ․ denying relief from judgment [and review] solely for abuse of that discretion” (citation omitted). Id. at 362.
The judge was well within her discretion in denying Jouberts motion, and in declining to hold a hearing. First, Joubert failed to show that the affidavits of Jenkins, who testified at trial, and his business associate, Kaijala, included evidence that “could not by due diligence have been discovered earlier” as is required under rule 60 (b). Cahaly, 451 Mass. at 361. See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 808 n.5 (2002) (support for rule 60 [b] motion must consist of facts and not conclusory statements). Joubert had the opportunity to, and indeed did, examine Jenkins on the formation of Springer Hill.
Second, even were the judge to accept the affidavits as both newly discovered and true, which she was not required to do, see DeLuca v. Boston Elevated Ry. Co., 312 Mass. 495, 499-501 (1942) (judge “not obliged” to believe affidavits, and even if “[t]he possibility that the alleged newly discovered evidence might affect the result [this does] not require the granting of a new trial”), she did not abuse her discretion in implicitly concluding that the averments in them would, at best, have merely impeached Jenkinss testimony, and would have had no impact on the remaining evidence upon which the judge relied in finding in favor of Miley. See Commonwealth v. Carver, 33 Mass. App. Ct. 378, 381 (1992) (judge “entitled” to use “knowledge and evaluation of the evidence at trial in reaching a decision” on defendants motion for new trial).
Furthermore, it is within the judges discretion whether to hold a hearing on a rule 60 (b) motion. See Knott v. Racicot, 442 Mass. 314, 326 (2004). Superior Court Rule 9A permits the judge to schedule a motion hearing “[i]f the court believes that a hearing is necessary or helpful to [the motions] disposition,” and we note that rule 60 (b) motions are not included in rule 9A’s list of motions “ordinarily [ ] allowed.” See Superior Court Rule 9A (c) (1), (3). We discern no abuse of discretion or error, and accordingly, affirm the trial judges order denying Jouberts rule 60 (b) motion to vacate judgment.
b. Motion for attorneys fees and costs. In light of our conclusion that the fact that Miley incurred attorneys fees and costs in his defense against Jouberts claims did not constitute an injury for purposes of establishing his tort counterclaims, and our resulting determination that a reversal of the judgment for Miley on the counterclaims (other than his claim for money had and received) is necessary, we need not reach Jouberts challenge to Mileys motion for attorneys fees and costs. Consistent with this conclusion, we vacate the amended judgment awarding such fees and costs.
Conclusion. So much of the February 13, 2018 judgment as found in favor of the defendant on his counterclaims for professional malpractice, fraud, negligence, and breach of fiduciary duty is reversed. The remainder of the judgment is affirmed. The order denying plaintiffs motion under Mass. R. Civ. P. 60 (b) to vacate the judgment is also affirmed. The August 24, 2018 judgment awarding attorneys fees and costs is vacated.
So ordered.
Reversed in part; affirmed in part; vacated in part
FOOTNOTES
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. Miley passed away in November 2018, and his personal representative, Todd Miley, was substituted as party to this action.
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. Although Joubert noticed his appeal from the judgments against him on his claims against the defendants, his only preserved challenges on appeal relate to the judgments on Mileys counterclaims. As we do not consider any issues not raised in the appellate briefs, any challenges Joubert may have to the judgments in favor of Miley on Jouberts claims have been waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
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. The apartment had previously been rented for $750 per month. In addition, Miley helped Joubert furnish the apartment; paid Jouberts water, electricity, and heating bills; and paid for a parking space for Jouberts vehicle.
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. Joubert aided Miley in recovering a deposit which Miley had made at a foreclosure auction, and unsuccessfully attempted to convince the city of Worcester not to limit street-parking for the tenants of Mileys apartment house.
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. Joubert was already acquainted with another of A Plus Solars principals.
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. We express no opinion as to whether the property was ever effectively transferred, and note the judges finding that the deed transferring the Leicester property to Springer Hill was not valid.
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. Miley also evicted Joubert from his rent-free apartment when he refused to leave voluntarily.
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. Joubert brought claims against Miley for breach of corporate agreement (count I), declaratory judgment (count IV), a derivative claim for misappropriation of assets (misnamed as “count IV”), imposition of a constructive trust (count V), conversion (misnamed as “count V”), and for recovery in quantum meruit (count VIII), and against Miley and Springer Hill for breach of fiduciary duty (count II) and fraud and misrepresentation (count III). By the time the complaint was filed, Springer Hill had been dissolved. It did not answer or otherwise plead in response to Jouberts complaint, but was not defaulted. Miley counterclaimed for professional malpractice (count I), fraud (count II), negligence (count III), money had and received (for the “short-term attorney loan”) (count IV), and breach of fiduciary duty (count V).
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. Springer Hill appeared in this appeal; Miley and Springer Hill filed a single brief.
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. Joubert argues that the judge was obligated to do so sua sponte.
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. We disagree with Joubert that Mileys inability to pinpoint a specific start date of Jouberts representation evidences the lack of an attorney-client relationship. Cf. Bays v. Theran, 418 Mass. 685, 688 (1994) (attorney-client relationship found without exact start date). We also disagree with Joubert that the fact that no money was exchanged for legal services between the parties demonstrates a lack of the attorney-client relationship, Mailer v. Mailer, 390 Mass. 371, 374 (1983) (paying “a fee is not conclusive as to the existence of the attorney-client relationship”), and note that not only did Miley provide Joubert with free housing and utilities, but also provided Joubert with a “short-term attorney loan.”
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. With respect to Mileys remaining counterclaim for money had and received, the judge found that Joubert failed to repay the $4,000 “short-term attorney loan” that Miley made to him. Joubert does not challenge the judges finding of damages against him on this counterclaim.
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. Miley argues that Joubert has failed to properly raise the issue of damages on appeal. While a close question, we decline to consider the challenge to Mileys counterclaims waived. See e.g., Commonwealth v. Hinckley, 422 Mass. 261, 267 n.7 (1996) (issue properly raised in footnote with inclusion of standard, citation, and analysis); Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019).
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. A decision that we note with appreciation in these circumstances.
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. In light of our conclusion, we need not further address the evidence supporting the other elements of these counterclaims in more detail.