Girardi v. Gabriel

649 N.E.2d 805, 38 Mass. App. Ct. 553
CourtMassachusetts Appeals Court
DecidedMay 16, 1995
DocketNo. 94-P-721
StatusPublished
Cited by29 cases

This text of 649 N.E.2d 805 (Girardi v. Gabriel) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Girardi v. Gabriel, 649 N.E.2d 805, 38 Mass. App. Ct. 553 (Mass. Ct. App. 1995).

Opinion

Warner, C.J.

Annunziata Girardi, as administratrix of her husband Venanzio’s estate, brought an action for legal malpractice against the attorneys who had prepared his will. The will provided that Venanzio Girardi’s assets were to pour over into a family trust. Because the defendants failed to have the execution of the will properly witnessed, Girardi died intestate, and his estate passed directly to his wife and [554]*554three children rather than pouring over into the trust.3 The plaintiff sued the defendants in tort and contract, claiming that their negligence resulted in the loss of the estate’s assets. A Superior Court judge granted the defendants’ motion for partial summary judgment on the grounds that the losses were too remote and speculative to be related causally to the defendants’ negligence. The plaintiff appeals the dismissal of these claims.4 With one exception, regarding the claimed payment of excess legal fees, we affirm the judgment.

A defendant moving for summary judgment may satisfy his burden by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that proof of that element is unlikely to be forthcoming at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The issue in this case is whether the defendants have demonstrated that proof that their negligence caused the plaintiff’s losses was unlikely to be forthcoming at trial.

The plaintiff would satisfy her burden of proof at trial by introducing evidence from which a jury could conclude that the harm she suffered was more likely caused by the defendants’ negligence than by some other agency. Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983). We summarize the facts in the light most favorable to the plaintiff to determine whether the defendants have shown that no genuine issue of material fact exists and that they were entitled to judgment as matter of law. See Attorney Gen. v. Bailey, 386 Mass. 367, 370-371, cert, denied, 459 U.S. 970 (1982).

Facts. We relate the facts as they appear in the pleadings, memoranda, affidavits, and depositions before the Superior [555]*555Court judge. The defendants served as the Girardi family’s legal counsel between 1976 and 1986. Robert Gabriel, who had been a selectman and town counsel for Northborough, handled all of Girardi’s real estate matters in the Marlborough and Northborough areas. With Robert Gabriel’s encouragement, Girardi purchased undeveloped tracts of land in Marlborough, Northborough, and Hubbardston. A successful real estate developer, he believed that the defendants’ familiarity with local real estate practices and government would enable them to secure the necessary approvals for his subdivision plans. Girardi adhered to conservative business practices, using previously generated profits to develop real estate without incurring debt.

After developing a life-threatening illness in 1986, Girardi had the defendants prepare an estate plan that included a pour-over will and trust which left his approximately $3,000,000 estate to the Venanzio Girardi Family Trust. His wife and three children, one of whom was a minor, were beneficiaries. Annunziata Girardi was named as executrix, and she and Richard and Robert Gabriel were named as trustees. Mrs. Girardi had no business experience and a limited education and understanding of the English language. Girardi signed the will and trust on July 23, 1986, but the will was never witnessed and the trust never signed by the trustees.

The defendants discovered their error when they called Mrs. Girardi and the three children into their office for a reading of the will shortly after Girardi’s death in February, 1987. They informed the plaintiff of their mistake and told her that they might be sued as a result. Within a short time, the plaintiff hired the law firm of Weiss, Angoff, Coltin, Koski & Wolf, P.C. (Weiss, Angoff) to oversee the administration of the estate.5

Three months later, while vacationing in Barbados, Mrs. Girardi met Atlanta businessman Charles Andrews. After a whirlwind romance, she invited Andrews to live with her and [556]*556to assist her in managing her husband’s estate. They were married in May, 1988.

Andrews became dissatisfied with Weiss, AngofFs progress, and in the fall of 1987 he advised the plaintiff to switch law firms to Choate, Hall & Stewart (Choate, Hall). That November, Choate, Hall indicated that the estate needed $900,000 to pay debts and expenses. Since the assets consisted primarily of real estate, the estate did not have sufficient funds available to pay its bills.6

Andrews and Choate, Hall developed a business plan with the goal of obtaining subdivision approvals for the real estate in Marlborough, Northborough, and Hubbardston, and then selling it. There were a number of interested buyers, some of whom required that various permits and approvals be secured. Choate, Hall recommended that a business manager superintend the plan, and Andrews convinced the family to hire him at a salary of $500,000, payable in stages.

In January, 1988, the plaintiff and her children approved the business plan and, on the advice of their attorneys and Andrews, borrowed $535,000.7 On Choate, Hall’s recommendation, they hired a new engineering firm at a cost of $204,000. That April, they borrowed $1,060,000 to finance the business plan, pledging the Marlborough, Northborough, and Hubbardston real estate as collateral and signing the note personally. In August, the plaintiff and her children borrowed an additional $250,000, pledging their family home as collateral. The money was to go into the estate account at Choate, Hall’s office. No attorney from Choate, Hall attended the closing, however, and Andrews misappropriated the funds.8

[557]*557By the fall of 1988, none of the Northborough, Marlborough, or Hubbardston properties had received subdivision approval. Andrews left the area suddenly. In January, 1989, the engineers discovered that the town of Northborough had voted not to continue water and sewer extensions in future subdivisions. As a final effort, Choate, Hall contacted the defendants, but they were unable to assist in obtaining the necessary approvals. In the summer of 1989, the real estate market collapsed. The plaintiff and her children defaulted on their loans, and the banks foreclosed on their property in June, 1990. At this time, Choate, Hall stopped representing the estate. The plaintiff paid Choate, Hall $170,000 for legal services.

Causation. “The principles and proof of causation in a legal malpractice action do not differ from those governing an ordinary negligence case.” Mallen & Smith, Legal Malpractice § 8.3, at 411 (3d ed. 1989). See DiPiero v. Goodman, 14 Mass. App. Ct. 929 (1982), and cases cited. The plaintiff contends that but for the defendants’ negligence, the estate’s assets would have poured over into the Girardi Family Trust, and the extensive losses would not have occurred. She relies on two expert witnesses, Attorneys Sumner Tilton and Charles Orcutt, to support the claim that the defendants’ negligence proximately caused the losses. The substance of the witnesses’ affidavits and deposition testimony follows.

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Bluebook (online)
649 N.E.2d 805, 38 Mass. App. Ct. 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/girardi-v-gabriel-massappct-1995.