NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1298
EDWARD P. O'NEIL, THIRD, & another1
vs.
LOUISE A. GAUDET2 & others.3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Edward O'Neil, III, and E.P. Snyder
Enterprise Inc., allege that defendants Louise A. Gaudet, both
individually and in her capacity as personal representative of
the estate of Charles E. (Charlie) Gaudet4 and in her capacity as
the trustee of three realty trusts, and Birch Hollow, LLC,
1 E.P. Snyder Enterprise Inc.
2Individually, as personal representative of the estate of Charles E. Gaudet, and as trustee of the 46 Pleasant Street Realty Trust, the 58 Tenney Road Realty Trust, and the 5 Makepeace Road Realty Trust. Charlie Gaudet passed away in 2023.
3 Birch Hollow, LLC, and Douglas E. Hausler.
4Because Louise and Charles Gaudet share a surname, we refer to Louise by her first name and Charles by his nickname, Charlie. (collectively with Charlie, who was a defendant in the case
before his decease, Gaudet defendants) committed a breach of
oral agreements concerning the purchase and development of
properties in Westford that attorney Douglas Hausler, who is
also a defendant, facilitated by representing both parties. The
plaintiffs now attempt to appeal from (1) a Superior Court
judge's order vacating a preliminary injunction and dissolving a
memorandum of lis pendens, which plaintiff O'Neil obtained
against the Gaudet defendants, and (2) the decision of a single
justice of this court refusing to grant relief from those
orders. The plaintiffs also appeal from a separate and final
judgment dismissing all of their claims against Defendant
Hausler. We dismiss the appeal from the Superior Court decision
concerning the preliminary injunction and lis pendens, and we
affirm the judgment dismissing the claims against Hausler. The
plaintiffs did not file a valid notice of appeal from the single
justice order, and the arguments regarding that order are not
properly before us.
Background. We summarize the facts found by the judge at
the hearing to dismiss the complaint and vacate the preliminary
injunction and lis pendens, supplemented with undisputed facts
from the record. O'Neil brought suit by alleging that the
parties had a business agreement providing, in general, that the
Gaudet defendants would acquire real properties and pay all
2 development and construction costs thereon in exchange for
O'Neil paying an agreed on rate of fourteen percent interest
plus two points on the monies advanced, to be paid when the
properties were sold or refinanced. O'Neil would receive any
additional money from the sale of the property after the loan
was repaid. O'Neil further alleges that Hausler represented
both parties in these transactions.
Beginning in 2019, Charlie held title to and set up trusts
for three properties in Westford, Massachusetts: 46 Pleasant
Street, 58 Tenney Road, and 5 Makepeace Road. O'Neil razed the
existing dwelling at 46 Pleasant Street and constructed a new
home into which he and his family moved. In July 2022, Charlie,
as trustee of the 46 Pleasant Street Realty Trust, brought a
summary process action in the Housing Court against O'Neil to
evict him from 46 Pleasant Street.5 O'Neil asserted defenses and
counterclaims based on his status as a tenant. Shortly
thereafter, O'Neil retained counsel and sent a letter to Hausler
requesting loan "payoff" amounts and detailed accounting of the
three Westford properties. Hausler, as counsel on behalf of the
Gaudet defendants, denied the existence of any agreement between
5 The eviction action was stayed on July 26, 2023, pending resolution of the Superior Court matter involving the same property which is the subject of this appeal.
3 the parties, and requested that O'Neil and his counsel provide
any loan documents pertaining to the properties at issue.
In October 2022, O'Neil, as the sole plaintiff, filed a
verified complaint against the Gaudet defendants and Hausler,
claiming that the Gaudet defendants verbally agreed to purchase
46 Pleasant Street, 58 Tenney Road, and 5 Makepeace Road, pay
all affiliated development and construction costs, and take
title to the properties on the condition that O'Neil pay
fourteen percent interest plus two percent on the monies loaned
at the time of sale or refinance. In that complaint, O'Neil did
not repeat his claim made in the Housing Court that he had been
in a tenant-landlord relationship with Charlie concerning the
property at 46 Pleasant Street.
In late October 2022, O'Neil also filed, in the Superior
Court, a motion for a temporary restraining order, or in the
alternative, injunctive relief, and a motion for issuance of a
memorandum of lis pendens on 46 Pleasant Street and 5 Makepeace
Road. The Gaudet defendants filed an opposition to O'Neil's
motion. After a two-party hearing, a Superior Court judge
approved O'Neil's memorandum of lis pendens on 46 Pleasant
Street and 5 Makepeace Road, and granted O'Neil's request for a
preliminary injunction, which enjoined the Gaudet defendants
4 from encumbering or transferring those two properties and from
evicting O'Neil from 46 Pleasant Street.6
On November 2, 2023, the Gaudet defendants7 filed an omnibus
motion for reconsideration regarding the issuance of a
preliminary injunction and a memorandum of lis pendens. In
addition, in October 2023, Hausler moved to dismiss the amended
verified complaint. In response, O'Neil moved to file a second
amended complaint to address factual and legal issues that
Hausler raised in his motion to dismiss and to add E.P. Snyder
Enterprise Inc. as a plaintiff.
These motions were consolidated for a hearing before a
second Superior Court judge. On July 30, 2024, the second
Superior Court judge vacated the preliminary injunction and
dissolved the lis pendens. Although the judge granted O'Neil's
motion to file the second amended complaint as it related to the
Gaudet defendants, she denied the request to amend with respect
to Hausler because she concluded that the proposed amended
allegations did not plausibly suggest an entitlement to relief
as related to Hausler, i.e., were futile. Accordingly, the
6 The operative complaint at the time the first judge granted O'Neil's request for injunctive relief and approved the memorandum of lis pendens was O'Neil's amended verified complaint.
7 Charlie passed away in 2023, prior to O'Neil's deposition.
5 judge allowed Hausler's motion to dismiss the plaintiffs'
amended verified complaint.
Thereafter, on August 27, 2024, the plaintiffs appealed to
a single justice of this court from the vacatur of the
preliminary injunction, the dissolution of the lis pendens on 46
Pleasant Street and 5 Makepeace Road, the dismissal of the
claims against Hausler, and the denial of O'Neil's motion to
amend as to Hausler.8 On September 4, 2024, the single justice
denied all requests after concluding that the plaintiffs "have
not demonstrated a clear error of law or an abuse of
discretion," and did not report the matter to a full panel of
the Appeals Court.
Three weeks later, on September 25, 2024, the judge who
dismissed the plaintiffs' proposed second amended verified
complaint against Hausler directed the entry of a separate and
final judgment, pursuant to Mass. R. Civ. P. 54 (b), 365 Mass.
820 (1974), only as to the claims against Hausler. On October
15, 2024, the plaintiffs, in their second notice of appeal,
attempted to appeal from the preliminary injunction and lis
pendens decisions of the single justice and second Superior
Court judge. In their third notice of appeal, filed that same
8 The notice of appeal dated August 27, 2024, represented the plaintiffs' first notice of appeal.
6 day, the plaintiffs appealed from the separate and final
judgment dismissing the claims against Hausler.
Discussion. 1. Preliminary injunction and lis pendens.
We do not reach the parties' substantive arguments concerning
the judge's vacatur of the preliminary injunction and
dissolution of the lis pendens, or the single justice's denial
of the petition for relief from those orders. First, the
plaintiffs' notice of appeal from the order of the single
justice of this court was not valid, as it appears to have been
filed in the Superior Court, rather than with the clerk of this
court.9 Furthermore, we conclude that the plaintiffs' appeal of
these issues, as noticed in their second notice of appeal, falls
outside the statutorily-set thirty-day appeal periods under
G. L. c. 231, § 118, and G. L. c. 184, § 15 (d).10 "A timely
9 Although this second notice of appeal does not appear on either the Superior Court or the Appeals Court docket, the Gaudet defendants do not argue that the notice of appeal was not filed, and the notice itself suggests that it was filed in the Superior Court. We note that when a notice of appeal is mistakenly filed in an appellate court, the Massachusetts Rules of Appellate Procedure require that it be transmitted to the clerk of the lower court and deemed filed. See Mass. R. A. P. 4 (a) (1) (B), as appearing in 496 Mass. 1601 (2022). However, the rule does not specify that the same should occur when a notice of appeal is mistakenly filed in a lower court. Regardless, even if there was a valid notice of appeal from the single justice order, it was untimely.
10The second notice of appeal concerns the Superior Court judge's orders vacating the preliminary injunction and dissolving the lis pendens as well as the single justice's denial of the analogous appeal. The third notice of appeal
7 notice of appeal is a jurisdictional prerequisite to our
authority to consider any matter on appeal." DeLucia v. Kfoury,
93 Mass. App. Ct. 166, 170 (2018). The controlling dates for
this appeal are (1) July 30, 2024, the date of the Superior
Court judge's order vacating the preliminary injunction and
dissolving the lis pendens, and (2) September 4, 2024, the date
of the single justice's order. We note that the plaintiffs'
second notice of appeal as included in the record appendix is
dated October 15, 2024. It follows that this notice of appeal
was filed forty-seven days after the conclusion of the thirty-
day appeal period that began after the Superior Court judge's
July 30, 2024, order. See G. L. c. 231, § 118, second par.
While the plaintiffs initially timely appealed the orders to a
single justice, their decision to seek discretionary relief from
a single justice did not alter the strict thirty-day appeal
period under the second paragraph of § 118. See DeLucia, 93
Mass. App. Ct. at 167-171. "[A] party taking an appeal from the
denial of a request for injunctive relief pursuant to the second
paragraph also may seek temporary relief, available at the
discretion of the single justice, pursuant to the first
paragraph." Ashford v. Massachusetts Bay Transp. Auth., 421
Mass. 563, 567 (1995). Accordingly, the plaintiffs' appeal from
concerns only the separate and final judgment dismissing all claims against Hausler.
8 the judge's order on July 30, 2024, vacating the preliminary
injunction and dissolving the lis pendens, was not timely filed,
leaving us without jurisdiction to consider the merits of the
appeal. Nor was the plaintiffs' second notice of appeal proper
with respect to the single justice order, even if it were
properly filed with the clerk of this court, as it was filed
eleven days past the thirty-day deadline and was otherwise not
within the scope of G. L. c. 231, § 118, second par.11
Were we to reach the merits of the appeal, we would see no
basis to find that the judge abused her discretion in concluding
that the plaintiffs failed to comply with the strict
requirements of the lis pendens statute, and that the
preliminary injunction was no longer warranted given the
plaintiffs' evolving positions, which undermined their
likelihood of success on the merits, and after a balancing of
the harms.
2. Claims against Hausler. The plaintiffs contend that
the judge erred in granting Hausler's motion to dismiss the
amended verified complaint, pursuant to Mass. R. Civ. P.
11That provision authorizes an appeal from a single justice decision to a panel of the Appeals Court only where the single justice has "grant[ed] a petition for relief from" certain orders relating to preliminary injunctions. G. L. c. 231, § 118, second par. Here, the single justice denied all relief sought by the plaintiffs.
9 12 (b) (6), 365 Mass. 754 (1974), and denying the plaintiffs'
motion to file a second amended complaint.12 We disagree.
We review the allowance of a motion to dismiss de novo.
See A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay
Transp. Auth., 479 Mass. 419, 424 (2018). We take all
allegations in the complaint as true and draw all reasonable
inferences in the plaintiffs' favor. See Iannacchino v. Ford
Motor Co., 451 Mass. 623, 625 n.7 (2008). To survive at the
motion to dismiss phase, the plaintiff's complaint must contain
"allegations plausibly suggesting (not merely consistent with)"
an entitlement to relief, and "must be enough to raise a right
to relief above the speculative level." Id. at 636, quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007).
a. Breach of contract and legal malpractice claims.
Counts I and XI of the second amended complaint allege that the
plaintiffs contracted Hausler to represent them in the
acquisition of and financing for various real estate properties,
12In granting Hausler's motion, the judge considered the claims against Hausler in O'Neil's proposed second amended complaint after noting that O'Neil moved to file the second amended complaint against Hausler in response to Hausler's motion to dismiss the amended verified complaint. The judge then denied the motion to file the second amended complaint because the averments contained in the revised complaint did not survive Hausler's motion to dismiss; thus, allowing the motion would have been futile. See Chang v. Winklevoss, 95 Mass. App. Ct. 202, 212 (2019) ("An amended complaint is futile if the amended claims would not survive a motion to dismiss for failure to state a claim").
10 and that Hausler committed a breach of his contract to provide
legal services when he later represented the Gaudet defendants
without obtaining the plaintiffs' written consent. The judge
properly dismissed the plaintiffs' breach of contract and legal
malpractice claims, concluding that the complaint failed to
state how Hausler's failure to obtain the plaintiffs' written
consent caused harm.
To prevail on a claim for breach of contract, the plaintiff
is required to demonstrate that "there was an agreement between
the parties; the agreement was supported by consideration; the
plaintiff was ready, willing, and able to perform his or her
part of the contract; the defendant committed a breach of the
contract; and the plaintiff suffered harm as a result." Bulwer
v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016).
A legal malpractice claim is a hybrid cause of action,
incorporating elements of both contract and tort. See McStowe
v. Bornstein, 377 Mass. 804, 807 (1979). Regardless of whether
a legal malpractice claim arises from contract or tort, the
plaintiff must sufficiently plead a causal connection to the
conduct and the harm alleged. See Greenspun v. Boghossian, 95
Mass. App. Ct. 335, 339 (2019). The violation of a disciplinary
or ethical rule "is not itself an actionable breach of duty to a
client." Fishman v. Brooks, 396 Mass. 643, 649 (1986).
Further, while violation of a canon of ethics or disciplinary
11 rule intended to protect someone in the plaintiffs' position may
provide some evidence of negligence, a plaintiff still must
establish that the defendant's negligence caused harm. See
McCann v. Davis, Malm & D'Agostine, 423 Mass. 558, 559-560
(1996).
The plaintiffs allege that Hausler had "conflicting
interests" and represented the parties "without proper
disclosures, consents, and not in compliance with the Canons of
Ethics and Code of Professional Responsibility Rule 1.7." By
failing to obtain written consent, the plaintiffs argue, Hausler
"was not able to provide competent and diligent representation."
Yet, nowhere do the plaintiffs plausibly state how Hausler's
alleged breach or legal malpractice caused plaintiffs any harm,
only that "the Plaintiffs have suffered damages and are
continuing to suffer damages." Such conclusory claims are
insufficient to survive a motion to dismiss. "[W]e look beyond
the conclusory allegations in the complaint and focus on whether
the factual allegations plausibly suggest an entitlement to
relief." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676
(2011). Accordingly, these claims were properly dismissed.
b. Breach of covenant of good faith and fair dealing
claim. Count II of the second amended complaint alleges that
Hausler breached the covenant of good faith and fair dealing in
"failing to provide competent and diligent legal representation
12 that represented the Plaintiffs' best interest." "The covenant
of good faith and fair dealing is implied in every contract
. . ." (citation omitted). Weiler v. PortfolioScope, Inc., 469
Mass. 75, 82 (2014). It is well settled in Massachusetts that
"[t]he scope of the [implied] covenant is only as broad as the
contract that governs the particular relationship" and does not
"create rights and duties not otherwise provided for in the
contract" (quotation and citations omitted). Chokel v. Genzyme
Corp., 449 Mass. 272, 276 (2007). As with their breach of
contract and legal malpractice claims, the plaintiffs failed to
articulate any damages caused by the alleged breach of the
implied covenant. See Bulwer, 473 Mass. at 690. Therefore, we
see no error in the dismissal of this claim.
c. Misrepresentation/fraud claim. "To sustain a claim of
misrepresentation, a plaintiff must show a false statement of a
material fact made to induce the plaintiff to act, together with
reliance on the false statement by the plaintiff to the
plaintiff's detriment." Zimmerman v. Kent, 31 Mass. App. Ct.
72, 77 (1991). To sustain a fraud claim, on the other hand, a
plaintiff must also establish that the defendants made a false
statement of material fact with knowledge of its falsity. See
Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455 Mass.
458, 471 (2009). Here, Count IV asserts a claim against Hausler
for misrepresentation/fraud, alleging that the defendants made
13 misrepresentations of material fact to the plaintiffs, including
that (1) the "[Gaudet defendants] would not retain more than the
agreed loan amount plus interest and points for each of the
loans," and (2) "the Defendants were the owners of the
properties and had the right to use and occupy the properties."
The first representation, that the Gaudet defendants would
adhere to the terms of the loan agreement, "falls within the
ordinary rule that false statements of opinion, of conditions to
exist in the future, or of matters promissory in nature" fail to
support a claim of fraud or misrepresentation. Yerid v. Mason,
341 Mass. 527, 530 (1960). See Hogan v. Riemer, 35 Mass. App.
Ct. 360, 365 (1993) ("Statements of expectation . . . do not
support an action for common law fraud"). As such, the
statement was not one on which the plaintiffs could reasonably
rely and was not actionable. Moreover, the second amended
complaint does not allege that Hausler knew the Gaudet
defendants would not perform their end of any agreement.
The second statement fares no better. Hausler, as counsel
on behalf of the Gaudet defendants, denied the existence of an
oral agreement and any rights of the plaintiffs to the
properties in response to a demand letter from O'Neil's
attorney, during either the pendency of a separate eviction
action against O'Neil or as initial communications in this case.
We agree with the judge that Hausler's statements in the letter
14 are protected by the litigation privilege. The privilege
applies to communications made preliminary to, or in the course
of, judicial proceedings. See Sriberg v. Raymond, 370 Mass.
105, 109 (1976); Doe v. Nutter, McClennen & Fish, 41 Mass. App.
Ct. 137, 140 (1996). Since Hausler made the statements in his
function as the Gaudet defendants' attorney in a communication
preliminary to litigation, the privilege applies, and the
statements cannot support the plaintiffs' misrepresentation and
fraud claims against Hausler.
d. Breach of fiduciary duty claim. Count V alleges that
Hausler committed a breach of his fiduciary duties to the
plaintiffs by conspiring with the Gaudet defendants to commit a
breach of the parties' agreements. To state a claim of civil
conspiracy, the plaintiff must show "an underlying tortious act
in which two or more persons acted in concert and in furtherance
of a common design or agreement." Bartle v. Berry, 80 Mass.
App. Ct. 372, 383-384 (2011). "Key to this cause of action is a
defendant's substantial assistance, with the knowledge that such
assistance is contributing to a common tortious plan." Kurker
v. Hill, 44 Mass. App. Ct. 184, 189 (1998). Here, the
plaintiffs' conspiracy claim fails because the second amended
complaint does not allege facts suggesting Hausler's knowledge
of or assistance with the alleged tortious acts of the Gaudet
defendants. The second amended complaint likewise lacks
15 sufficient facts to support the plaintiffs' breach of fiduciary
duty claim against Hausler.
e. Chapter 93A claim. Count XII alleges that Hausler's
conduct constituted "unfair and deceptive acts or practices"
under G. L. c. 93A. "Although whether a particular set of acts,
in their factual setting, is unfair or deceptive is a question
of fact . . . the boundaries of what may qualify for
consideration as a c. 93A violation is a question of law"
(citation omitted). Milliken & Co. v. Duro Textiles, LLC, 451
Mass. 547, 563 (2008). To determine if a practice is unfair, we
consider "(1) whether the practice . . . is within at least the
penumbra of some common-law, statutory, or other established
concept of unfairness; (2) whether it is immoral, unethical,
oppressive, or unscrupulous; [and] (3) whether it causes
substantial injury to consumers (or competitors or other
businessmen)" (citation omitted). PMP Assocs., Inc. v. Globe
Newspaper Co., 366 Mass. 593, 596 (1975).
Here, the judge first concluded that the Chapter 93A claim
was not viable because it was derivative of the other claims.
On its own, this conclusion would not be a valid reason to
dismiss the Chapter 93A claim. See Slaney v. Westwood Auto,
Inc., 366 Mass. 688, 693 (1975). However, the judge did not end
her analysis there, pointing out that mere negligence or a
breach of contract alone does not constitute a Chapter 93A
16 violation. See Beverly v. Bass River Golf Mgt., Inc., 92 Mass.
App. Ct. 595, 606 (2018) ("Appellate courts have consistently
held that a mere breach of contract, without more, does not
amount to a violation of G. L. c. 93A"); Squeri v. McCarrick, 32
Mass. App. Ct. 203, 207 (1992) ("A negligent act standing by
itself does not give rise to a claim under c. 93A"). The judge
found that the second amended complaint failed to articulate any
conduct by Hausler that was immoral, unethical, or unscrupulous.
We see no reason to disturb the judge's findings. Finally,
assuming for the sake of argument that Hausler did act
unethically, the second amended complaint fails to allege how
that unethical conduct caused the plaintiffs' harm. See
Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790,
798 (2006).
Conclusion. The appeal from the Superior Court order dated
July 30, 2024, vacating the preliminary injunction and
dissolving the lis pendens, is dismissed. The separate and
17 final judgment dismissing the claims against Hausler is
affirmed.
So ordered.
By the Court (Sacks, Smyth & Wood, JJ.13),
Clerk
Entered: March 24, 2026.
13 The panelists are listed in order of seniority.