sierra fria corp. v. evans, 1st cir. (1997)
TRANSCRIPT
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USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 97-1294
SIERRA FRIA CORP. AND RODRIGO ROCHA,
Plaintiffs, Appellants,
v.
DONALD J. EVANS, P.C., ET AL. (GOODWIN, PROCTER & HOAR),
Defendants, Appellees.
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_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker,* Senior U.S. District Judge] __________________________
_________________________
Before
Selya, Circuit Judge, _____________
Coffin and Campbell, Senior Circuit Judges. _____________________
_________________________
Stephen L. Braga, with whom Miller, Cassidy, Larro__________________ _______________________
Lewin, L.L.P. was on brief, for appellants. _____________
David S. Blatt, with whom John K. Villa, Willia________________ _______________ ______
Connolly, James J. Dillon, and Goodwin, Procter & Hoar wer________ ________________ _______________________
brief, for appellees.
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_________________________
October 9, 1997
________________________
________________
*Of the Southern District of New York, sitting by designation
SELYA, Circuit Judge. St. Ambrose is said toSELYA, Circuit Judge.
_____________
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advised St. Augustine that "[w]hen . . . at Rome, live in
Roman style." John Bartlett, Familiar Quotations 113 (Ju
____________________
Kaplan ed., 16th ed. 1992). In this case, the defendant
Boston law firm and its constituent partners (hereina
collectively Goodwin, Procter), counselled their erst
clients that when acquiring real estate in Aruba there
material risks associated with doing so in the Aruban style.
plaintiffs demurred and instead traveled a path consistent
St. Ambrose's counsel. Costly problems surfaced after the
was done.
Unwilling to absorb the loss in silence, the cli
sued for malpractice. The district court found in the lawy
favor. See Sierra Fria Corp. v. Evans, ___ F. Supp. _____ _________________ _____
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Mass. 1997) [No. 95-CIV-10106-MEL, slip op.]. The cli
appeal. We affirm.
I. TROUBLE IN PARADISE I. TROUBLE IN PARADISE
Inasmuch as the appellants profess not to contest
facts as found by the lower court, we lean heavily upon
opinion below in recounting the relevant events. See id. at___ ___
[slip op. at 2-18].
In 1991, plaintiffs-appellants Sierra Fria Corpora
and Rodrigo Rocha (hereinafter collectively Rocha) acquire
option to purchase two Aruban resort hotels, the Divi Divi
the Divi Tamarijn, from Grape Holding N.V. (Grape)
approximately $35,000,000. Rocha engaged Goodwin, Procter
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2
lead counsel, with overall responsibility for coordinating l
due diligence involved in the transaction. The law firm assi
a partner, Michael Glazer, and an associate, Minta Kay, to
on the acquisition. Both attorneys specialized in real es
law, but neither previously had handled an Aruban transaction
Kay received a draft title memorandum based on Ar
land records from Ingrid Bleeker, an attorney affiliated
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Smeets, Thesseling & Von Borkhorst (a firm that one of Roc
joint venturers had hired for its familiarity with Aruban
Dutch law). Kay, who had hoped to obtain either title insur
or an as-built survey or both, expressed concern that
memorandum lacked solid title assurances. Bleeker informe
that title insurance was unavailable in Aruba and that Ar
real estate transactions customarily proceeded without as-b
surveys. The prevailing practice, she said, was to requisiti
title opinion from a local notary. Bleeker also informe
that, if an as-built survey could be obtained at all, it
necessitate an extremely costly and time-consuming proc
Frank Zeven, a more senior member of the Smeets firm, spoke
Glazer and confirmed Bleeker's depiction of Aruban real es
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practices.
Based on these conversations, Glazer and Kay unders
that if Rocha purchased the hotels according to Aruban custo
risked not knowing exactly what assets he was acquiring. T
concern heightened when they realized that a time-share co
(Dutch Village) adjoined the Divi Tamarijn Beach Resort and
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no clearly visible dividing line separated the properties. T
Kay spoke to Christopher DeChiario, Rocha's long-time aide.
explained the hazards of proceeding without a survey,
DeChiario promised to discuss the matter with Rocha. Gl
later spoke directly to Rocha about the risks attendant to
absence of a survey. Rocha indicated that he was
particularly concerned. Consequently, Goodwin, Procter di
commission a survey and Kay continued to work with Bleeke
determine precisely what assets were located on the hot
properties.
Bleeker eventually mailed several maps of
properties to Goodwin, Procter. Kay informed DeChiario that
maps did not answer the boundary questions and again expla
that, without a survey, Rocha lacked assurance that he
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purchasing all the improvements. DeChiario told Kay to pres
with the transaction notwithstanding the absence of a survey,
to focus her efforts on securing a cross-use agreement with
Village that would permit Divi Tamarijn guests to use
Village's facilities, and vice-versa.
When Glazer and Kay met with Rocha and DeChiario
iron out some wrinkles in the proposed cross-use agreement,
once again explained that, absent a survey, a purchaser coul
know whether the envisioned property encompassed all of
hotels' facilities. Rocha stated that he was not intereste
obtaining a survey and that he was willing to consummate
seemingly lucrative transaction without one. Kay then draft
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memorandum detailing her concerns and sent copies to Rocha
DeChiario.
During a subsequent conference call with Rocha
other investors, Kay again voiced her worries about the loca
of various facilities. Rocha grew impatient and made it c
that speed was his highest priority. He expressed eagernes
take control of the hotels during the height of the 1991-
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tourist season, and he indicated a willingness to rely on
cross-use agreement and the customary Aruban title assurances
protection.
Goodwin, Procter received a standard Aruban t
opinion from Maria Eman, an Aruban notary, firmed up the cr
use agreement, and thereafter consummated the transaction
February 11, 1992. The closing did not bring clos
approximately one year later, Rocha learned that assets havin
appraised value in excess of $4,000,000 tennis courts, par
spaces, and an administrative building housing the hot
laundry facilities lay on land belonging to Dutch Village.
After unsuccessfully attempting to gain title to
assets, Rocha invoked diversity jurisdiction, see 28 U.S.C___
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1332(a) (1994), and brought suit against Goodwin, Procter.
his complaint, Rocha accused the defendants of negligence
breach of a contractual obligation to perform legal ser
skillfully, prudently, and accurately. Goodwin, Procter de
Rocha's charges.
The United States District Court for the Distric
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Massachusetts, Morris E. Lasker, District Judge, conduct
five-day bench trial. The judge then authored an opinio
which he identified the controlling issue as whether Goo
Procter "informed Rocha of th[e] risk [of proceeding witho
survey] with sufficient emphasis and particularity to
certain that his decision on whether to consummate the purc
was intelligent and knowing." Sierra Fria, ___ F. Supp. at___________
[slip op. at 3]. He resolved this issue in the defenda
favor, basing his decision primarily on an assessment of
relative credibility of Glazer, Kay, and Rocha. In particu
Judge Lasker credited the attorneys' testimony that
repeatedly had warned Rocha about the dangers attendant
purchasing the hotels without a survey and found incre
Rocha's denial that they had uttered such warnings.1 See i
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___ _
___ [slip op. at 16].
II. THE LEGAL LANDSCAPE II. THE LEGAL LANDSCAPE
Goodwin, Procter is a Boston-based firm, retaine
Massachusetts. Although the firm devoted its labors to prop
located abroad, neither party disputes that Massachusetts
supplies the substantive rule of decision. We therefore su
Massachusetts legal malpractice law to determine whether Goo
Procter's conduct falls safely within its boundaries. See Bo ___ _
v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 19
__________________________
____________________
1The court also ruled against Rocha on a variety of o
claims. See Sierra Fria, ___ F. Supp. at ___, ___ [slip op___ ___________
23-24, 28]. None of those rulings has been appealed
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therefore, we take no view of them.
6
Moores v. Greenberg, 834 F.2d 1105, 1107 n.2 (1st Cir. 1987). ______ _________
In general, Massachusetts law requires a client
legal malpractice case to show that the attorney had a dut
the client, that he breached the duty, and that his br
proximately caused the plaintiff's harm. See Fishman v. Bro ___ _______ __
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487 N.E.2d 1377, 1379-80 (Mass. 1986). The first elemen
indigenous to the attorney-client relationship; in Massachuse
as elsewhere, an attorney owes his or her client a duty
exercise a reasonable degree of care and skill in the perfor
of legal tasks. See Wagenmann v. Adams, 829 F.2d 196, 218
___ _________ _____
Cir. 1987); Pongonis v. Saab, 486 N.E.2d 28, 29 (Mass. 19 ________ ____
The second element is of critical importance here. Under it,
plaintiff "must demonstrate that the attorney failed to exer
reasonable care and skill in handling the matter for whic
attorney was retained." Colucci v. Rosen, Goldberg, Sla _______ ____________________
Levenson & Wekstein, 515 N.E.2d 891, 894 (Mass. App. Ct. 19 ___________________
The third element is standard fare in tort actions and requ
no discussion in connection with Rocha's central theory
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liability; if, on these facts, closing without a su
constituted malpractice, then the harm to Rocha is manifest.
Of course, generalized concepts of duty and breach
be adapted to fit particular contexts. Thus, when a client s
advice from an attorney, the attorney owes the client "a dut
full and fair disclosure of facts material to the clie
interests." Williams v. Ely, 668 N.E.2d 799, 806 (Mass. 19 ________ ___
This means that the attorney must advise the client of
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significant legal risks involved in a contemplated transact
and must do so in terms sufficiently plain to permit the cl
to assess both the risks and their potential impact on
situation. Consequently, in a legal malpractice action
implicates an attorney's performance of his counseling funct
the trier of fact must determine whether the attorney's a
permitted the client adequately to weigh the risks involved
given course of action. See id. ___ ___
III. ANALYSIS III. ANALYSIS
Although Rocha presents a multifaceted asseverati
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array, his appeal boils down to two interlocking claims of er
We examine them sequentially.
A. A. __
The appellant posits that the district court's opi
violates Fed. R. Civ. P. 52(a) and thereby precludes effec
appellate review. This proposition is unfounded.
In terms, Rule 52(a) dictates that, in a bench tr
the court "shall find the facts specially and state separa
its conclusions of law." This directive "impose[s] on the t
court an obligation to ensure that its ratio decidendi is
_____ _________
forth with enough clarity to enable a reviewing court reliabl
perform its function." Touch v. Master Unit Die Prods., Inc._____ ___________________________
F.3d 754, 759 (1st Cir. 1995). But this imperative ha
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practical, commonsense cast. Rule 52(a) requires trial ju
neither to pen exhaustive dissertations nor to make findings
conclusions that are exquisitely precise. As long as the t
8
court clearly relates the findings of fact upon which
decision rests and articulates in a readily intelligible ma
the conclusions that it draws by applying the controlling la
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the facts as found, no more is exigible. See Peckha___ _____
Continental Cas. Ins. Co., 895 F.2d 830, 842 (1st Cir. 19
__________________________
Judge Lasker's twenty-eight page opinion clears this hurdle
room to spare.
We need not tarry. The judge's rescript recapitul
the trial testimony of the key witnesses, limns a series
credibility calls, delineates reasons for crediting the testi
of some witnesses and discounting that of others, and traces
inferences that flow from the credited testimony. The ju
thorough exposition of his factual findings stands in ma
contrast to the unsupported generalizations that have trig
Rule 52(a) concerns in the cases upon which Rocha relies.
e.g., Touch, 43 F.3d at 758-59; Pearson v. Fair, 808 F.2d
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____ _____ _______ ____
166 (1st Cir. 1986) (per curiam).
Rocha tries to minimize the district cou
thoroughness. Regardless of the battery of factual findings
says, the judge made only a single conclusion of law and, t
did not comply with Rule 52(a). This is little more
whistling past the graveyard. Rule 52(a) announces
qualitative, not a quantitative, standard and here, Goo
Procter either was or was not guilty of negligence in
representation of Rocha. Since the judge made the solitary l
conclusion necessary for resolution of the action, our in
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The judge then applied the standard to the discerned facts.
Sierra Fria, ___ F. Supp. at ___ [slip op. at 17-18]. In___________
doing, he provided a clearly marked roadmap that shows ho
reached a decision in this case. The jurisprudence of Rule 5
does not require more exegetic treatment. See, e.g., Faso ___ ____ ___
Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1058_________ __________________________
Cir. 1992); Westside Property Owners v. Schlesinger, 597_________________________ ___________
1214, 1216 n.3 (9th Cir. 1979).
B.
B. __
Next, Rocha (who is represented by fresh counsel
appeal) mounts a direct challenge to the lower court's deci
on the merits. His new lawyer says that he is contesting
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the court's legal conclusion, not its factfinding. Therefore
argues, we must undertake de novo review of the decis
Goodwin, Procter not only defends Judge Lasker's decision,
also disparages Rocha's attempt to import a de novo standar
review into the case. We address this standard-of-re
imbroglio before turning to the various facets of Rocha's
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claim.
1. 1.
We have made it pellucid that "appeals in the fe
court system are usually arrayed along a degree-of-defer
continuum, stretching from plenary review at one pole to hi
deferential modes of review . . . at the opposite pole." I
Extradition of Howard, 996 F.2d 1320, 1327 (1st Cir. 1993).______________________
the ordinary case, this paradigm requires the court of appeal
scrutinize the trial court's answers to purely legal question
novo and to assess the trial court's answers to straight fac
questions for clear error. See id. ___ ___
There is, however, a middle ground which consist
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the trial court's answers to mixed questions of law and fa
and that middle ground is not amenable to a single standar
review rubric. Rather, the applicable standard of review va
depending upon the nature of the mixed question; the more f
dominated it is, the more likely that deferential, clear-e
review will obtain, and the more law-dominated it is, the
likely that non-deferential, de novo review will obtain. See__
at 1328.
Putting the issue that Rocha seeks to raise in
proper place along the law/fact continuum ends the ins
standard-of-review controversy. Though Rocha casts his argu
artfully, it is perfectly plain that determining whether Goo
Procter exercised due care in representing Rocha is a f
intensive exercise, see Brennan v. Hendrigan, 888 F.2d 189,
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___ _______ _________
11
(1st Cir. 1989), and the district court, sitting without a j
appropriately treated it as such. The proof of the puddin
precedential; we consistently have reviewed adjudications
negligence arising in the course of bench trials by referenc
the clearly erroneous test.2 See, e.g., La Esperanza de P ___ ____ _________________
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Inc. v. Perez y Cia. de P.R., Inc., ___ F.3d ___, ___ (1st____ ___________________________
1997) [No. 96-1904, slip op. at 11]; Clement v. United Sta _______ _________
980 F.2d 48, 53 (1st Cir. 1992); DeGuio v. United States,______ _____________
F.2d 103, 105 (1st Cir. 1990); Obolensky v. Saldana Schmier,_________ _______________
F.2d 52, 54 (1st Cir. 1969).
Under this format, we may reverse the district ju
conclusion that Goodwin, Procter did not act negligently only
"after careful evaluation of the evidence, we are left wit
abiding conviction that those determinations and findings
simply wrong." State Police Ass'n v. Commissioner, ___ F.3d__________________ ____________
___ (1st Cir. 1997) [No. 97-1319, slip op. at 9]; accord Cump ______ ___
v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 19 _____________________
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Moreover, to the extent that Rocha seeks to evade the applica
of this standard by the heavy-handed expedient of crea
labelling, he is painting with an empty palette. See Reli ___ ___
Steel Prods. Co. v. National Fire Ins. Co., 880 F.2d 575,_________________ ________________________
(1st Cir. 1989) (declaring that this court "will not pe
____________________
2This does not mean that clear-error review applies up
down the line. For example, a judge's determination whet
plaintiff has adduced sufficient evidence to create a questio
fact on the issue of negligence is itself a question of
subject to de novo review. See Cort s-Irizarry v. Corpora___ _______________ ______
Insular de Seguros, 111 F.3d 184, 187, 189-91 (1st Cir. 19
___________________
Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995). _____ ________________
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parties to profit by dressing factual disputes in `le
costumery").
2. 2.
The merits need not detain us. Here, the dist
judge accepted the facts surrounding the transaction very muc
stated by Glazer and Kay, rejecting Rocha's contrary account.
do not find the judge's decision to disbelieve Rocha's testi
clearly erroneous. Ample evidence controverted Rocha's pro
that he was unaware of the dangers inherent in closing witho
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survey, including the lawyers' testimony and various documen
evidence (notes, memos, and letters). Credibility determinat
fall squarely within the trier's preserve, see, e.g., Anthon___ ____ _____
Sundlun, 952 F.2d 603, 606 (1st Cir. 1991), and for good rea _______
where a judge presides at a bench trial, observes the witnes
demeanor, and hears their words as they are uttered, he is
better equipped to gauge their veracity (or lack of verac
than is an appellate panel consigned to sift a paper record a
the fact. Hence, we decline the appellant's implicit invita
to disturb the judge's credibility-based findings.
This determination does not end our work. We s
must evaluate the judge's conclusion, based on his acceptanc
the attorneys' testimony, that Goodwin, Procter was
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negligent. Having performed this evaluation, we find no erro
The losing party always faces an arduous climb whe
attempts to impugn a factbound finding (such as a finding o
negligence) that results from a bench trial. Here, howe
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Rocha's difficulties are twice compounded. For one thing,
ascent becomes steeper when the loser bears the burden of p
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on the issue. For another thing, the grade increases still
when the trier rests the challenged finding on a credibi
judgment. Recognizing the inhospitable nature of the terr
Rocha argues that, even accepting Glazer's and Kay's narrati
what transpired, Goodwin, Procter's unfocused advice
particularly the firm's inadequate explanation of the cost
time requirements of an Aruban survey and its failure to su
a post-closing arrangement as an alternative protective mecha
did not allow Rocha to weigh his options realistically.
In assembling this argument, Rocha overstates
relevant standard of care. Massachusetts law requires
attorney performing a counseling function to advise the clien
a manner that permits the latter intelligently to assess
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risks of taking (or declining to take) a particular action.
lawyers even high-priced lawyers ordinarily are
guarantors of favorable results. It is neither fair, practi
nor legally appropriate to benchmark an attorney agains
standard of prescience. Thus, lawyers are not obliged to re
in exquisite detail every fact or circumstance that
conceivably have a bearing on the client's business decision
to anticipate remote risks. See Williams, 668 N.E.2d at 806.___ ________
the same token, lawyers are not expected to persist relentle
when clients especially clients who are sophistic
businessmen choose to go forward after being suitably info
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of looming risks. See Conklin v. Hannoch Weisman, P.C., 678___ _______ _____________________
1060, 1069 (N.J. 1996) (stating that "an attorney has
obligation `to lie down in front of a speeding train' to pre
a bad deal"); Horn v. Moberg, 844 P.2d 452, 455 (Wash. Ct.____ ______
1993) (similar); Gill v. DiFatta, 364 So.2d 1352, 1354-56____ _______
Ct. App. 1978) (similar); see generally Ronald E. Malle___ _________
Jeffrey M. Smith, 2 Legal Malpractice 20.2 (4th ed. 1996). _________________
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Then, too, expert testimony almost always is requ
to establish the standard of care in a legal malpractice act
See Wagenmann, 829 F.2d at 218-19; Pongonis, 486 N.E.2d at___ _________ ________
This case falls comfortably within the sweep of that abeceda
rule. And given the facts as found, the expert testimony ad
at trial does not support the claim of negligence, but, rat
confirms that Goodwin, Procter adhered to the applicable stan
of care when it advised Rocha of the risks inherent in procee
without a survey.
The parties each offered one expert witness who
substantively with the standard of care applicable to attor
practicing in Massachusetts.3 Rocha's expert, Stoddard Pl
testified that Goodwin, Procter had two viable options
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addressing the survey problem: to locate and commission Du
speaking surveyors to fly to Aruba and map the properties, o
warn Rocha about the perils of closing without a survey
____________________
3While Rocha presented an additional expert wit
(Professor Richard Perlmutter), he served only to confirm
the substantive testimony of Rocha's principal expert (whic
been cast in terms of the New York standard of care) app
equally in Massachusetts.
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permit him to make an informed decision about whether to proc
For the purpose of his testimony, Platt assumed that Goo
Procter never warned Rocha about these hazards and the
transgressed the standard of care. Goodwin, Procter's exp
Phillip Nexon, started from a different premise. He assume
truth of Glazer's and Kay's testimony that they repeat
cautioned Rocha and concluded that these warnings satisfie
standard of care.
Once the judge resolved the assumptions underlying
expert's testimony in Goodwin, Procter's favor, any substan
dissonance vanished. Rocha's expert admitted as much when
acknowledged that if "the client was brought in, . . . the is
were discussed with the client and the client decided to pro
without a survey," then Goodwin, Procter fulfilled
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obligations to Rocha. That, of course, is precisely
happened here or so the trier supportably found. In lig
this testimonial harmony, we have no warrant to set aside, u
principles of clear-error review, the district court's conclu
that Goodwin, Procter did not negligently advise Rocha.
3. 3.
On appeal, Rocha attempts to blunt the force of
reasoning by insisting that Goodwin, Procter negligently fa
to explore the possibility of offsetting the absence of a su
by constructing some type of post-closing arrangement.
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argument founders on evidentiary shoals.4
First, Platt Rocha's expert testified that he
never consummated a real estate transaction that included a p
closing survey component. This jibed with the testimony of
Goodwin, Procter's expert who classified post-closing sur
as "not customary." Further, Rocha adduced no evidence
another type of post-closing arrangement could have remedie
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boundary problems, much less that customary Massachus
practice suggested some such arrangement.
Second, and perhaps more fundamentally, the re
contains no expert testimony that the Massachusetts standar
care required Goodwin, Procter to recommend any post-clo
arrangement to Rocha. We reiterate that Rocha's expert testi
that the lawyers could conform to the standard of care eithe
commissioning a survey or by warning Rocha of the risks
proceeding without one. To avoid this evidentiary obsta
Rocha appears to argue that even after he made an info
decision to proceed without a survey, Goodwin, Procter had
residual duty to suggest a prophylactic post-closing arrange
Yet, Rocha points to no expert testimony that supports
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formulation of the standard of care. While "expert testimon
not essential where the claimed legal malpractice is so gros
obvious that laymen can rely on their common knowledge
____________________
4In point of fact, Goodwin, Procter did discuss
implement a post-closing arrangement the cross-use agreeme
in an effort to ameliorate the risks inherent in purchasin
hotels without an as-built survey.
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recognize or infer negligence," Pongonis, 486 N.E.2d at 29,________
narrow exception to the expert testimony requirement does
encompass Rocha's sophisticated theory of negligence.
We summarize succinctly. Given the evidence of rec
it is readily apparent that the district court's conclusio
not poisoned by Goodwin, Procter's failure to suggest a p
closing arrangement as an antidote to the absence of a survey
4. 4.
Rocha's last asseveration is a variation on t
themes. He maintains that he agreed to proceed without a su
only on the condition that he receive the same title assura
as the prospective first mortgagee, Bank of Nova Scotia (B
To the extent that Rocha couches this contention in terms o
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implied contract, he failed to raise it below and there
cannot raise it for the first time on appeal. See Correa___ _____
Hospital San Francisco, 69 F.3d 1184, 1191 (1st Cir. 1995), c ______________________
denied, 116 S. Ct. 1423 (1996); Martinez v. Colon, 54 F.3d______ ________ _____
987 (1st Cir.), cert. denied, 116 S. Ct. 515 (1995). _____ ______
Even if Rocha had not waived this contention, it
fail on the merits. Glazer testified that when he told
that he would receive the same assurances as BNS, he meant
Rocha would receive the same title report prepared by the
Aruban notary. Glazer further testified that Rocha
fundamentally the same [assurances], or lack of assurances,
BNS. The trial judge reasonably credited all of Glaz
testimony. Under these circumstances, the appellant's attemp
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transmogrify this factual issue into an issue of law fizz
See Reliance Steel, 880 F.2d at 577. ___ ______________
IV. CONCLUSION IV. CONCLUSION
We need go no further. The district court warrant
found that Goodwin, Procter warned Rocha time and again about
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risks inherent in completing the transaction without a sur
that Rocha failed to heed those warnings, and that Rocha pai
price for his hubris, both literally and figuratively. S
those warnings fully complied with the standard of care
Massachusetts law requires of practicing attorneys, we are no
liberty to reverse the entry of judgment in the defenda
favor.
Affirmed. Affirmed. ________
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