Francis v. Goodman
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Francis v. Goodman, (1st Cir. 1996).
Opinion
USCA1 Opinion
[NOT FOR PUBLICATION]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.
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Related
Francis v. Goodman
81 F.3d 5 (First Circuit, 1996)
Warren B. Sheinkopf v. John K.P. Stone Iii, Etc.
927 F.2d 1259 (First Circuit, 1991)
Courtney J. Lundquist v. Precision Valley Aviation, Inc.
946 F.2d 8 (First Circuit, 1991)
Bank One, Texas, N.A. v. Paul J. Montle
964 F.2d 48 (First Circuit, 1992)
Atlantic Track & Turnout Company v. Perini Corporation
989 F.2d 541 (First Circuit, 1993)
DeVaux v. American Home Assurance Co.
444 N.E.2d 355 (Massachusetts Supreme Judicial Court, 1983)
Bank One, Texas, N.A. v. Montle
974 F.2d 220 (First Circuit, 1992)
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