Pyche v. Howe

• Court: Court of Appeals for the First Circuit
• Decided: July 1, 1992
• Docket: 91-2338
• Status: Published

Opinion

USCA1 Opinion

July 1, 1992            [NOT FOR PUBLICATION]

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No. 91-2338 

                                   THOMAS J. PYCHE,

                                Plaintiff, Appellant,

                                          v.

                                RICHARD HOWE, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
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                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Thomas J. Pyche and Sharon L. Pyche on brief pro se.
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            Harvey Weiner, Barry D. Ramsdell, and  Peabody & Arnold, on  brief
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        for appellee Richard P. Howe.
            Thomas E. Sweeney on brief for appellee Brian Barry.
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Per Curiam.  Pro  se plaintiffs Thomas and  Sharon Pyche
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            filed  this action  for legal  malpractice and  conspiracy to

            commit fraud  against attorneys Richard Howe  and Brian Barry

            and  Barry's client  Daniel Desrochers.   The  district court

            entered summary judgment for  attorney Howe and dismissed the

            claims against  the remaining defendants with  prejudice.  We

            affirm.

                 This  case  arose  from  defendant  Desrochers'  alleged

            breach of  an agreement with plaintiff Thomas Pyche (Pyche). 

            On July 9, 1986, Pyche sold Desrochers a duplex home at 124 D

            Street   in  Lowell,  Massachusetts  for  $105,000,  a  price

            allegedly  below the  property's fair  market value.1   Under

            the  terms of  their  agreement, Desrochers  agreed to  allow

            Pyche's elderly parents to continue to reside at the property

            and to  participate in  the federally subsidized  "Section 8"

            rental assistance program.   Desrochers agreed to comply with

            any Section 8 requirements.  Pyche agreed to pay his parents'

            share  of the  $350 monthly  rent.   Implicit in  this poorly

            drafted  agreement  is  the  assumption that  the  Section  8

            program would pay the balance of  Pyche's parents' rent.  The

            agreement also  gave Pyche  a right  of first  refusal should

            Desrochers wish  to sell  the property while  Pyche's parents

            were still living there. 

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            1.  The property is also described as 146 Warwick Street.

                                         -2-

Pyche paid his parents'  rent for July and  August 1986.

            Thereafter, for  reasons that  are not clear,  the deal  went

            sour.2   Desrochers  instituted eviction  proceedings against

            Pyche's  parents in  Lowell district  court.   Attorney Barry

            represented  Desrochers in  these proceedings.    The summary

            process  complaint alleged  that  Pyche's  parents were  five

            months in arrears in their rent.  Pyche engaged attorney Howe

            to  represent his parents  in the eviction  proceeding and to

            institute  a  separate  breach  of  contract  action  against

            Desrochers on Pyche's own behalf.        

                 To cut to the chase, the eviction proceeding resulted in

            a judgment  for Desrochers.   Attorney Howe filed  a separate

            action against  Desrochers on Pyche's behalf.   The complaint

            in this breach of contract action alleged that Pyche sold the

            property to  Desrochers for substantially less  than its fair

            market value  in return for Desrochers'  promise that Pyche's

            parents could live there as long as  they desired and that he

            (Desrochers)   would  help  them  secure  Section  8  housing

            assistance.   Desrochers allegedly breached this agreement by

            failing to help Pyche's parents secure Section 8 payments and

            by evicting  Pyche's parents.  Pyche  claimed $50,000 damages

            for Desrochers' unjust enrichment.  

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            2.  Pyche says  that Desrochers refused to  sign certain rent
            receipts  to  enable  Pyche's  parents to  obtain  Section  8
            payments.  Desrochers claimed that Pyche asked him to falsify
            the  rent receipts to  reflect that Pyche's  parents paid the
            rent when, in fact, Pyche was paying the rent. 

                                         -3-

After this  breach of  contract action had  been pending

            before  the Middlesex  superior court  for almost  two years,

            Pyche  instructed attorney  Howe either  to move  for summary

            judgment or withdraw.  Attorney Howe was allowed to  withdraw

            by a May 3, 1989 court order.  Pyche represented himself in a

            bench  trial.   On  September 21,  1989,  the superior  court

            issued a decision in favor of Desrochers.  The superior court

            specifically  found  that   Desrochers  instituted   eviction

            proceedings after the Pyches  were five months in arrears  on

            their rent and  that Pyche  failed to  prove that  Desrochers

            interfered  with  the  normal  processing of  the  section  8

            application Pyche's  parents had filed.   The court concluded

            that "[t]he  evidence is insufficient to  warrant any finding

            that  the defendant  breached either  provision of  the sales

            agreement with respect to Pyche's parents."  Judgment entered

            for Desrochers on October 2, 1989. 

                 The Pyches filed the  instant federal action in November

            1990.    Their  complaint  alleged that  the  defendants  had

            "engag[ed] in acts of conspiracy, fraud,  misuse of the legal

            process, collusion, legal malpractice, obstruction of justice

            and racketeering."  The Pyches specifically claimed that Howe

            lost  the  eviction proceeding  unnecessarily  and  failed to

            place  a   lien   on  the   property  (thereby   facilitating

            Desrochers'  resale).    Pyche  reiterated  his  claim   that

            Desrochers   breached  their   agreement  and   alleged  that

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Desrochers and  attorney Barry filed a  fraudulent motion for

            summary  judgment in the  eviction case.   The complaint also

            alleged that Barry failed to  respond to Pyche's questions in

            the summer of 1986 (when Pyche and Desrochers were  disputing

            the propriety of section 8 receipts).   Both  the Pyches  and

            Howe  filed motions  for  summary judgment.   Barry  moved to

            dismiss  under Fed.  R. Civ.  P. 12  (b)(6).   Desrochers was

            never served with the complaint as he  apparently left Lowell

            for  parts  unknown.   In  a  series  of  margin orders,  the

            district  court  (1)  allowed  Howe's  motions  for   summary

            judgment  on  the claims  of  Thomas  and  Sharon Pyche,  (2)

            allowed  Barry's  motion  to  dismiss,  and  (3)  sua  sponte
                                                              ___  ______

            dismissed the complaint against Desrochers.  The Pyches filed

            numerous post-judgment  motions and  a petition  for mandamus

            which resulted in this appeal.3  

                 Apart from the conclusory allegations of  fraud, Pyche's

            claim  against Howe essentially  boils down  to one  of legal

            malpractice.   The district  court allowed Howe's  motion for

            summary  judgment  on  the  grounds  that  the  Massachusetts

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            3.  In resolving  the  Pyches' petition  for  mandamus,  this
            court ordered that  Pyche's "Notice of  Intention to File  an
            Appeal" be treated as a notice  of appeal.  Howe has moved to
            dismiss  Sharon Pyche's appeal on the ground that she did not
            sign  this notice, even though  she is named  in the caption.
            The district court granted Howe's motion for summary judgment
            on Sharon Pyche's claim on the ground that he did not have an
            attorney-client  relationship  with  her.    As   the  record
            supports this, we elect  to affirm this ruling on  its merits
            and thus  need  not decide  the  jurisdictional issue.    See
                                                                      ___
            Norton v. Mathews, 427 U.S. 524, 530-32 (1976).
            ______    _______

                                         -5-

superior  court's judgment  for Desrochers  in the  breach of

            contract action collaterally estopped Pyche from relitigating

            issues related  to the  eviction.  Consequently,  Pyche could

            not  prevail   in  his  malpractice  claim   because  he  was

            collaterally  estopped   from  proving  that  he  would  have

            recovered on his underlying claim against Desrochers.  

                 This ruling was correct.   Under Massachusetts law, "[a]

            client in  a  malpractice action  based on  an allegation  of

            attorney negligence  must show  that, but for  the attorney's

            failure, the  client probably  would have been  successful in

            the  prosecution  of  the   litigation  giving  rise  to  the

            malpractice  claim."    Colucci v.  Rosen,  Goldberg, Slavet,
                                    _______     _________________________

            Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987).
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            Pyche  contends  that but  for  Howe's  negligent failure  to

            attach the property and  assert Desrochers' alleged breach of

            contract as  a counterclaim  in the eviction  proceeding, his

            parents would not have been evicted, and Pyche would not have

            lost  his  claim to  the property.    But the  superior court

            decided  that Desrochers  did not  breach his  agreement with

            Pyche  by evicting Pyche's parents.4  This finding is binding

            and entitled  to preclusive effect  in this proceeding.   See
                                                                      ___

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            4.  We think  this finding is apparent both from the language
            of  the court's  decision  (finding that  Desrochers did  not
            breach "either  provision" of the sales  agreement, i.e., the
            section 8 provision, and the provision concerning the term of
            the  tenancy)  and  the  transcript  of  the  trial  in  this
            proceeding.

                                         -6-

Martin v.  Ring, 401 Mass.  59, 61-62  (1987).   As Pyche  is
            ______     ____

            foreclosed  from  proving  that  Desrochers   breached  their

            agreement by evicting Pyche's  parents,  Pyche cannot prevail

            on his claim that attorney Howe negligently failed to  assert

            this  breach in  the eviction  proceeding.   Accordingly, the

            judgment for attorney Howe must be affirmed.

                 Pyche's remaining claim asks  that this court find fraud

            from the fact that  Pyche was not successful in  his previous

            action   against  Desrochers.     The  complaint  was  wholly

            insufficient to state a viable fraud claim against any of the

            defendants.  Pyche's  motions to amend his complaint  did not

            cure these defects.  Pyche remains collaterally estopped from

            relitigating his claim against Desrochers.     

                 Having reviewed the entire  record, we discern no error.

            Accordingly,   the   judgment  of   the  district   court  is

            affirmed.5  
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            5.  This moots Howe's  motions to strike the  addendum to the
            Pyches' reply  brief and  the transcript of  Pyche's superior
            court  trial.    We accepted  the latter under  E.I Dupont De
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            Nemours  &  Co., Inc.  v. Cullen,  791  F.2d 5,  7  (1st Cir.
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            1986)(federal courts may take  notice of proceedings in other
            courts if those proceedings have a direct relation to matters
            at  issue).  The transcript  indicates that Pyche  had a full
            and  fair   opportunity  to  litigate   his  claims   against
            Desrochers.

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