Opinion
No. 11–P–897.
2012-07-18
EMANOUIL ENTERPRISES, LLC, & another v. Paul F. ALPHEN.
The judge went on to address each of the plaintiffs' proposed findings in the same manner. The plaintiffs argue that we should reverse the c. 93A judgment because these findings on causation were insufficient and clearly erroneous.
By the Court (KANTROWITZ, WOLOHOJIAN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Peter Charles Emanouil and two of his related entities, Emanouil Enterprises, LLC, and Granite Hill Estates, LLC, (Granite Hill) brought this malpractice action against their attorney, Paul F. Alphen. Emanouil had attempted to purchase a parcel of land in Westford, but claims he failed as a result of Alphen having an undisclosed conflict of interest. Emanouil sued Alphen for legal malpractice, breach of fiduciary duty, misrepresentation, and violation of G.L. c. 93A, § 11 (c. 93A).
At trial, the jury found that Alphen breached his fiduciary duty
to Granite Hill but awarded no damages because the breach was not a substantial factor in causing financial loss. On all other claims, the jury found in favor of Alphen. On the reserved c. 93A claim, the judge found that there was sufficient evidence to warrant a finding that Alphen violated c. 93A, but there was insufficient evidence that the violation was causally related to any damages sustained by Emanouil's companies, including attorney's fees, lost profits, and benefit of the bargain damages. Before us, the plaintiffs only appeal from the amended judgment dismissing their claim under c. 93A, challenging the adequacy and accuracy of the trial judge's findings. We affirm.
This judgment was later vacated and is not being appealed here.
Background. Alphen represented the plaintiffs in purchasing and developing a 190–acre parcel of land which abutted the 44–acre parcel of land in dispute here. During the representation, Alphen encouraged Emanouil to consider buying the 44–acre parcel, and Emanouil eventually hired a separate attorney and attempted to do so. At the time, Alphen was also the chairman of the highway garage building committee (committee) for the town of Westford.
In July, 2000, Emanouil made his best offer of $200,000
on the 44–acre parcel. Despite interest in the offer by at least one of the parcel's owners, John Vieira, another one of the owners, John's sister, Rita Vieira Leal, stated that she had “shredded” Emanouil's offer because she “just didn't think it was a fair price .”
Emanouil offered to pay $150,000 for the land and up to $50,000 in back taxes.
On August 24, 2000, while acting as chairman of the committee, and without disclosing his conflict to either party, Alphen wrote a letter to the board of selectmen recommending that the town purchase the parcel, and that it do so “ASAP” because “third parties” were also interested. On September 5, 2000, Alphen informed the town that he had decided to take a temporary leave of absence from the committee until the 44–acre parcel was no longer on the committee's agenda, in order to “avoid an appearance of a conflict of interest.”
Sometime between September 7–14, 2000, Leal called the assistant town manager, telling him that an offer had been made on the land and that she “wasn't willing to go through with his [i.e., Emanouil's]—his dollar figures.” It was then that the assistant town manager informed Leal that the town itself might be willing to make an offer on the land.
The town decided to make an offer on the parcel at the end of September.
In December of 2000, the town closed on the 44–acre parcel for $425,100, more than double Emanouil's best offer.
Notably, the property had been brought to the committee's attention at an earlier date. In September, 1999, Alphen chaired the committee meeting where the 44–acre parcel was considered, but the committee declined to take action, citing wetlands and access issues as the reasons it passed on the opportunity.
On the c. 93A claim, the judge's “findings” in this case consist of the parties' respective suggested findings and conclusions of law, over which the judge marked “allowed” or “denied” as appropriate. The judge “allowed” several of Alphen's proposed findings, which stated:
“The conduct of the defendant ... was not a substantial contributing factor in causing financial loss to Granite Hill Estates, LLC or to Emanouil Enterprises, LLC.... A plaintiff cannot prevail under c. 93A, § 11 in the absence of proof that the plaintiff suffered a loss caused by the defendant's unfair or deceptive conduct.... Since the plaintiffs have failed to prove an essential element of their c. 93A, § 11 claims, the Court need not make any further findings or rulings regarding the c. 93A claims .”
The judge went on to address each of the plaintiffs' proposed findings in the same manner. The plaintiffs argue that we should reverse the c. 93A judgment because these findings on causation were insufficient and clearly erroneous.
Discussion. In c. 93A actions, damages are recoverable only if they are shown to have been caused by a defendant's unfair or deceptive act or trade practice. See Hershenow v. Enterprise Rent–A–Car Co. of Boston, 445 Mass. 790, 797–802 (2006); Casavant v. Norwegian Cruise Line, Ltd., 460 Mass. 500, 503 (2011). Pursuant to Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996), the trial judge must “find the facts specially and state separately its conclusions of law thereon.” In addition, “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Ibid.
Although we do not encourage the practice of adopting findings of fact verbatim without personal analysis, a judge's findings of fact must stand unless unsupported by the evidence. First Pa. Mort. Trust v. Dorchester Sav. Bank, 395 Mass. 614, 622 n. 12 (1985), and cases cited. In addition, a “finding is clearly erroneous only when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997) (internal quotation marks and citations omitted).
Here, the underlying reasoning behind the judge's findings was clear, and there was sufficient evidence to support them. The reason Emanouil and his companies did not obtain the parcel was not because of Alphen's conduct, but because the town's offer was more than double Emanouil's offer. Leal had stated on the record she would not have accepted an offer as low as Emanouil's. Furthermore, Leal was the one who called the town to discuss the parcel. Moreover, Alphen's communication of confidential information to the town was not harmful because the town already knew about the parcel (see note 5, supra ). The judge could have found that Emanouil would have neither increased the amount of the offer nor done anything differently if he had known about Alphen's conflict and the town's interest in the property any earlier. In fact, there is no evidence that Emanouil increased the offer after hearing of the town's interest. As a result, there was no error in concluding that Emanouil's unacceptably low offer was the ultimate cause of the failed purchase and all associated expenses, not Alphen's misconduct .
The record does not show that the plaintiffs ever argued below, as they do here, that they suffered a financial loss of approximately $10,000 or more in fees paid to Alphen. Because this claim was pursued for the first time on appeal, we will not consider it. Demoulas v. Demoulas, 432 Mass. 43, 65 (2000). However, even if it had been raised below, a review of the record shows that the $10,000–plus amount asserted is an aggregation of all work Alphen did for Emanouil and his companies, which is mostly unrelated work on the 190–acre parcel for which they received value. In reviewing the bills, it appears that only one is related to the 44–acre parcel, for the amount of $476. No argument was made that the services were substandard or unnecessary. Regardless, parties are not entitled to attorney's fees under c. 93A unless they prevail on the merits of their claim. See, e.g., Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 718 (1989); Lord v. Commercial Union Ins. Co., 60 Mass.App.Ct. 309, 323–325 (2004). We also note that while the plaintiffs raised many issues below, they did not seek disgorgement of attorney's fees as an element of damages. They did not provide, nor are we aware of any Massachusetts case that provides for the per se forfeiture of such fees from an attorney in such circumstances where they were not even requested. Also, there was no loss here, as the plaintiffs would have had to pay an attorney without a conflict to do the work in any event. It is the plaintiffs' burden to show that the legal fees were proximately caused by the alleged act of malpractice. See, e.g ., Fiduciary Trust Co. v. Bingham, Dana & Gould, 58 Mass.App.Ct. 245, 251 (2003); Coastal Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass.App.Ct. 55, 63–64 (2004) (in legal malpractice action, in order to recover unnecessary legal fees, plaintiffs must show that they suffered an actual loss and that the attorney's conduct was the proximate cause of that loss).
Amended judgment entered October 19, 2009, affirmed.