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[NOT FOR PUBLICATION]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

________________

______________________

Ryckman, Jr. were on brief for appellants.

____________
Hilary B. Miller for appellees.
________________

____________________

August 1, 1996

____________________

_______

CYR,
CYR,

Circuit Judge.
Circuit Judge.
_____________

Following our remand for findings

of fact and conclusions of law, see Francis v. Goodman, 81 F.3d 5

___ _______
_______

(1st

Cir.

1996),

established

U.S.C.

that

district

predicate for

1332(a)(1) (1994),

Rose intended

clearly

946

the

the

to

court

found

diversity jurisdiction

id. at 6-7.
___

remain

that

a New

York

As

Rose

had

under 28

its determination

domiciliary is

not

erroneous, Lundquist v. Precision Valley Aviation, Inc.,

_________
_______________________________

F.2d 8, 11

(1st Cir.

1991), we

affirm the

district court

judgment.

The district

in determining

N.A.
____

v.

court considered the

Rose's domiciliary intent.

Montle,
______

964

F.2d

48, 50

(1st

appropriate factors

See Bank One, Tex.,

___ ________________

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

___

"weighty" factor).

jurisdiction.

564, 574

evidence,

id. (voter
___

The district court thus

See Anderson v.
___ ________

(1985) ("Where there

registration a

possessed diversity

City of Bessemer City,

_____________________

are two permissible views

470 U.S.

of the

the factfinder's choice between them cannot be clearly

erroneous.").

In 1984,

property on Main

Francis and

her son

Street, Nantucket.

inherited a

commercial

She met Rose in August 1985

and an intimate relationship developed.

Rose obtained a Benetton

clothing

asked Francis

franchise in

company, Nanben

late

1985, and

Corporation ("Nanben"),

store at Francis' Main Street location.

could operate

if Rose's

a retail

Individually represented

by retained

counsel, the parties

lease on March

with Rose.

6, 1986.

negotiated and entered

During this

into a

time, Francis began living

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:

and

want to

do something.

"You owe me a lot of money here,

Should I

do something?"

responded, "No,

you don't have to do anything.

have patience.

You will get paid."

from

Rose,

Nanben

continued to

lag

Trust me.

Rose

Just

Despite similar assurances

behind

in rent

payments

through April 1991.

In

late June

together but remained

1991, Francis

friends.

Rose

and

Rose stopped

had handled various

living

legal

matters

for Francis during

their intimate relationship,

but in

June 1992 Francis again consulted the attorney who had negotiated

the

store

lease, and

action against

Nanben.

decided

Nanben

bankruptcy

court,

and

possession

of the

store, she

judgment

diversity

for

unpaid

to initiate

summary eviction

promptly sought

although

refuge in

the

Francis

eventually

regained

was unable

to collect

a $92,898

rent and

costs,

action charging Rose

which

precipitated this

with malpractice for

failing to

advise Francis to seek

unpaid store rent.

independent representation regarding

the

The

action

was

tried

(Lindsay, J.), without a jury.

district

court ruled

attorney-client

that

relationship

before

the

district

court

Following the case in chief, the

Francis

had

with

Rose.

never

The

established

court

an

entered

judgment for Rose under Fed. R. Civ. P. 52(c) ("If during a trial

without a jury a party

court finds against the

judgment as a

has been fully heard on an issue

and the

party on that issue, the court may enter

matter of law against that party with respect to a

claim . . . that cannot under the controlling law be maintained .

. . without

a favorable finding on that issue. . . .").

Francis

appealed.

All

agree that Massachusetts

malpractice claim.

606, 608

See
___

the Francis

v. Antonellis,
__________

80 F.3d

(1st Cir. 1996) (court ordinarily applies governing law

agreed upon by parties).

be found liable

client.

One Nat'l Bank

______________

law governs

As a

general rule, an

breach of duty to

the

DeVaux v. American Home Assur. Co., 444 N.E.2d 355,

______
________________________

357

(Mass. 1983).

for malpractice absent a

attorney cannot

Nor is

it sufficient to

show that an

attorney-

client

the

relationship existed as

plaintiff

respect to

must

the act

malpractice claim.

to an unrelated

prove that

the

or omission

relationship

which forms

Symmons v.
_______

matter; rather,

existed with

the basis

O'Keeffe, 644
________

for the

N.E.2d 631,

639

(Mass. 1995); Robertson v. Gaston Snow & Ely Bartlett, 536 N.E.2d
_________
__________________________

344, 348-49

(Mass.) (prior

representation insufficient),

cert.
_____

denied, 493 U.S. 894 (1989).

______

Absent an express agreement to provide

legal services,

an attorney-client relationship may be implied when "(1) a person

_______

seeks advice

assistance

or assistance from

sought

professional

pertains

competence,

assistance."
__________

DeVaux,
______

(quotation omitted).

be

established

plaintiff

by

to matters

and
___

impliedly agrees to give or

_________ ______ __ ____ __

444

an attorney, (2) the

(3)

within

the
___

the

attorney
________

advice or

attorney's

expressly

or

actually gives the desired advice or

________ _____ ___ _______ ______ __

N.E.2d

at

357

(emphasis

added)

In appropriate cases, the third element may

proving

reasonably relied

that the

on the

attorney

attorney

knew

that

to provide

the

legal

services,

but did nothing

to prevent the

detrimental reliance.

Sheinkopf v. Stone, 927 F.2d 1259, 1264-68 (1st Cir. 1991).1

_________
_____

We find no

she wanted legal

Rose bill her

639.

clear error.

Francis never

advice with respect to the store

for such legal advice.

told Rose that

rent, nor did

See Symmons, 644 N.E.2d at

___ _______

At trial, Francis conceded that Rose was merely a tenant at

the time she spoke with him concerning the unpaid store rent.

the

other hand,

she testified

that

she thought
_______

Rose was

attorney when she asked him during the same conversation

she

should

"do

Sheinkopf, 927
_________

unspoken

something"

F.2d at

belief" that

about

the store

1265 (requiring

person

is

acting

rent.

more than

in

legal

On

her

whether

But
___

see
___

"subjective,

capacity).

____________________

1Whether an attorney-client relationship exists presents

issue

of fact

under Massachusetts

N.E.2d 148, 152

(Mass. 1983).

clear

the district

court

relationship.

See
___

error in

attorney-client
committee's
review of

note to

1991

Thus,

Amendment

factual findings);

law.

Page v.
____

Frazier, 445
_______

Francis must
finding that

Fed. R. Civ.
(mandating

an

demonstrate
there was

no

P. 52 advisory
"clear

error"

Atlantic Track & Turnout Co. v.

______________________________

Perini Corp., 989 F.2d 541, 543 (1st Cir. 1993) (same).
____________

Moreover, Francis testified:

"I believed that [Rose]

would give

me good advice since we were an item."

On this

district

Francis

record, we

court finding

was seeking

cannot disturb

that Rose

legal advice

appraisal of his company's

the well-supported

had

no reason

to know

from

him, as

opposed to

financial ability, as her

that

an

tenant, to

pay the store rent, and that the trust Francis placed in Rose was

due, in

district

an

large part, to

their intimate relationship.

Thus, the

court correctly concluded that the failure to establish

attorney-client relationship with

foreclosed Francis' malpractice

claim.

respect to the

store rent

See Symmons,
___ _______

644 N.E.2d

at 639; DeVaux, 444 N.E.2d at 357.

______

Affirmed.
________

The parties shall bear their own costs.

_______________________________________

SO ORDERED.
SO ORDERED.
__________