Gosselin v. O'Dea

United States Court of Appeals
For the First Circuit
__________________

No. 00-1617

WILLIAM J. GOSSELIN,
Plaintiff, Appellant,

v.

RAYMOND A. WEBB, ARTHUR C. SULLIVAN, JR., WILLIAM N.
HURLEY AND MARSHALL L. FIELD, d/b/a FIELD, HURLEY, WEBB &
SULLIVAN,

Defendants, Appellees.
__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O’Toole, U.S. District Judge]
__________________

Before

Selya and Stahl, Circuit Judges,

and Lisi,* District Judge.
__________________

Joseph H. Reinhardt with whom Philip Y. Brown, Danielle R.
Menard, Adler, Pollock & Sheehan, P.C., Edwin A. McCabe and The
McCabe Group, P.C. were on brief for appellant.
William N. Hurley for appellees.

March 16, 2001
 __________________

*Of the District of Rhode Island, sitting by designation.

LISI, District Judge. In this legal malpractice action,

Appellant William Gosselin (“Gosselin”) seeks to hold Appellees, a

group of attorneys who share office space and practice under the

“trade name” Field, Hurley, Webb & Sullivan (“Field, Hurley” or

the “firm”) vicariously liable for the alleged professional

misdeeds of attorney James O’Dea (“O’Dea”). The legal contours

of O’Dea’s relationship with the firm form the subject matter

of this appeal. Gosselin has settled his claims against O’Dea.

The district court granted summary judgment in Appellees’

favor, Gosselin v. O’Dea, 40 F. Supp. 2d 45 (D. Mass. 1999),

and Gosselin appeals from that judgment. Because we find that

there exists a genuine issue of material fact as to whether a

partnership by estoppel existed between O’Dea and Appellees, we

vacate the judgment below.

I. Background

In April of 1992, Gosselin, who had been employed as a

second mate on a merchant marine freighter, was discharged by

his employer, American President Lines, Inc. (“APL”).

Gosselin, through his union, filed a grievance to contest the

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discharge. On August 12, 1992, an arbitrator conducted a

hearing on Gosselin’s grievance.

The Gosselins met O’Dea, Mrs. Gosselin’s cousin, in

October or November 1992, while they were attending the funeral

of a family member. O’Dea is an attorney licensed to practice

law in Massachusetts and Washington, D.C. After the funeral,

the Gosselins and O’Dea discussed Gosselin’s case and Gosselin

told O’Dea that because of the termination, Gosselin’s

financial situation had deteriorated badly and he was facing

the loss of his home to a possible foreclosure. During the

conversation, O’Dea told the Gosselins that he was now “with

Field, Hurley, Webb & Sullivan in Lowell [Massachusetts].”

O’Dea asked Gosselin to let him know the results of the

arbitration.

Shortly after this chance meeting between Gosselin and

O’Dea, the arbitrator decided Gosselin’s case, reinstating

Gosselin to his position with APL with certain conditions

imposed. The arbitrator’s award, however, did not provide for

any payment of back wages.

Before calling O’Dea, and because Gosselin “wanted to make

sure that Mr. O’Dea had the backing and support of an

established law firm, which could provide him with advice and

support,” Mrs. Gosselin telephoned her brother, a long-time

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resident of Chelmsford, Massachusetts (Chelmsford abuts Lowell)

to inquire whether he had ever heard of Field, Hurley. Mrs.

Gosselin’s brother responded that Field, Hurley “was a well-

respected law firm in Lowell.” Having received this positive

report, the Gosselins decided to call O’Dea.

Gosselin contacted O’Dea by phone at his Washington, D.C.

office and scheduled an appointment to meet with O’Dea at the

Field, Hurley offices on November 24, 1992. In the foyer of

the building, O’Dea’s name was listed on the directory under

the heading “Field, Hurley, Webb, Sullivan Attorneys at Law.”

O’Dea’s name was situated beneath the names of Marshall Field,

William Hurley and Arthur Sullivan, Jr. The listing did not

indicate that Field, Hurley was not a partnership, nor was

there any notation describing O’Dea’s relationship with the

group or the individual attorneys listed. On their arrival at

the Field, Hurley offices, O’Dea introduced the Gosselins to

Arthur Sullivan (“Sullivan”) and the four exchanged some

pleasantries. O’Dea and the Gosselins then went to an office

within the Field, Hurley suite where they discussed O’Dea’s

pursuit of claims against APL for back wages and for damages

under the Americans with Disabilities Act (“ADA”).

Some time prior to January 2, 1993, Gosselin was again

discharged by APL. On that day, Gosselin spoke to O’Dea by

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phone. The two discussed the lawsuit against APL, and Gosselin

agreed to have O’Dea represent him on a contingent fee basis.

During the week of January 13, 1993, at O’Dea’s direction,

the Gosselins went to the Field, Hurley offices to sign

documents necessary for the filing of a petition under Chapter

11 of the United States Bankruptcy Code. O’Dea had previously

prepared the documents in Washington, D.C., but, because the

Gosselins were residents of New Hampshire, it was necessary

that an attorney licensed in New Hampshire file them. O’Dea

had called Sullivan seeking his recommendation of a New

Hampshire attorney to file the documents. During that

conversation, O’Dea asked Sullivan to have the Gosselins come

to the Field, Hurley offices to execute the documents.

Sullivan agreed. When Mrs. Gosselin came to the Field, Hurley

offices she first met with Sullivan’s secretary who showed her

where to sign the documents. When Mrs. Gosselin indicated to

Sullivan’s secretary that she had a question regarding the

relationship between the filing of the bankruptcy petition and

the foreclosure on her home, Sullivan met with her and

explained how the bankruptcy filing would stay the foreclosure.

Mrs. Gosselin maintains that Sullivan also told her that his

office would deliver the documents to the New Hampshire

attorney for filing, and that Sullivan knew that O’Dea was

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working on trying to get back wages and looking into the ADA

claim.

During the time that O’Dea was representing Gosselin,

Gosselin called Field, Hurley and spoke to Sullivan on one

occasion. Gosselin also called Field, Hurley and spoke to a

secretary on several occasions “[t]o find out what was going on

as far as back wages and ADA claim (sic) and also bankruptcy.”

In addition to Sullivan’s meeting with Mrs. Gosselin, his

notes reflect a phone call with Gosselin on December 26, 1992,

“for O’Dea.” Several other of Sullivan’s notes from January

11-15, 1993, indicate that Sullivan received three to four

phone calls from O’Dea regarding Gosselin’s case.

Throughout the course of his representation of Gosselin,

O’Dea used letterhead with only his name on it when he

communicated with Gosselin in writing. However, that

letterhead did bear the addresses of both O’Dea’s Washington,

D.C. office and the Field, Hurley office in Lowell.

On August 26 and 27, 1993, O’Dea represented Gosselin at

an arbitration hearing to contest the second discharge. At

that time, APL made several settlement offers to Gosselin. The

final offer was in the amount of $125,000 in exchange for

Gosselin’s voluntary termination of employment and a general

release. O’Dea and Gosselin discussed the offer and the fact

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that that sum would not be sufficient to pay all of Gosselin’s

debts. Gosselin claims that O’Dea advised him to reject the

offer “because the A.D.A. suit would be a million dollar law

suit.” Gosselin rejected the offer.

In November 1993, the arbitrator ruled against Gosselin

and in favor of APL. When Gosselin learned that O’Dea had

failed to file a timely administrative claim under the ADA and

that O’Dea had not filed a claim for back wages, he filed suit

against O’Dea and Appellees1 for legal malpractice in

mishandling his claims against APL.

During the pendency of the lawsuit in the district court,

Gosselin settled his claim against O’Dea. Field, Hurley, Webb

& Sullivan and the individual Appellees filed a motion for

summary judgment which the district court granted. Gosselin,

40 F. Supp. 2d at 48. Gosselin appeals from that decision.

II. Standard of Review

“This Court reviews orders for summary judgment de novo,

construing the record in the light most favorable to the

1
The lawsuit originally named Field, Hurley, Webb &
Sullivan. The district court, having been apprised that
Appellees were not members of an actual partnership, on its
own motion amended the complaint to name Appellees
individually. No one complains about this action.

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nonmovant and resolving all reasonable inferences in that

party’s favor.” Landrau-Romero v. Banco Popular de P.R., 212

F.3d 607, 611 (1st Cir. 2000).2 If, after such review, we find

that “the evidence . . . reveals a genuine dispute over a

material fact--that is, if a reasonable factfinder, examining

the evidence and drawing all reasonable inferences in the

required manner, could resolve a factual controversy which is

critical to the outcome of the case in favor of the nonmoving

party--then summary judgment will not lie.” Serapion v.

Martinez, 119 F.3d 982, 987 (1st Cir. 1997).

III. Partnership By Estoppel

2
At the outset, this court must note Appellees’ failure to
comply with Rule 56.1 of the Local Rules of the United States
District Court for the District of Massachusetts, which
requires the moving party to “include a concise statement of
the material facts of record as to which the moving party
contends there is no genuine issue to be tried, with page
references to affidavits, depositions and other
documentation." D. Mass. Loc. R. 56.1. Rules such as this
“were developed by the district courts in this circuit in
response to this court's concern that, absent such rules,
summary judgment practice could too easily become a game of
cat-and-mouse, giving rise to the ‘specter of district court
judges being unfairly sandbagged by unadvertised factual
issues.’ Such rules are a distinct improvement--and parties
ignore them at their peril.” Ruiz Rivera v. Riley, 209 F.3d
24, 28 (1st Cir. 2000) (quoting Stepanischen v. Merchants
Despatch Transp. Corp., 722 F.2d 922, 931 (1st Cir. 1983)).
This court proceeds as did the district court, without a
conforming statement of fact, and any negative consequences of
that omission must be borne by the Appellees.

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 We begin our review by noting, as did the district court,

that the individual Appellees were not in fact partners in a

law firm. They shared office space and certain expenses and

practiced under the “trade name Field, Hurley, Webb & Sullivan

(collectively “the group”).”3 Appellees’ Brief at 1.

Gosselin, therefore, relies on the doctrine of partnership by

estoppel to hold Appellees liable for O’Dea’s alleged

malpractice. To prevail under this doctrine, a plaintiff must

prove four elements: “(1) that the would-be partner has held

himself out as a partner; (2) that such holding out was done by

the defendant directly or with his consent; (3) that the

plaintiff had knowledge of such holding out; and (4) that the

3
We find this statement troublesome, particularly in the
context of this litigation. Rule 7.5 of the Massachusetts
Rules of Professional Conduct warns lawyers against the use of
such a “trade name.” Mass. Rules of Prof’l Conduct R. 7.5
(1998). Rule 7.5(d) provides: “Lawyers may state or imply
that they practice in a partnership or other organization only
when that is the fact.” Id. In addition, Comment [2]
provides:

[L]awyers who are not in fact partners,
such as those who are only sharing office
facilities, may not denominate themselves
as, for example, ‘Smith and Jones,’ or
‘Smith and Jones, A Professional
Association,’ for those titles, in the
absence of an effective disclaimer of joint
responsibility, suggest partnership in the
practice of law.

Id. (emphasis added).

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plaintiff relied on the ostensible partnership to his

prejudice.” Atlas Tack Corp. v. DiMasi, 637 N.E.2d 230, 232

(Mass. App. Ct. 1994) (quoting Brown v. Gerstein, 460 N.E.2d

1043, 1052 (Mass. App. Ct. 1984)). Evidence of “holding out”

may consist of “words spoken or written or . . . conduct.”

Mass. Gen. Laws ch. 108A, § 16(1). Thus, a plaintiff may

establish the first two elements of his claim by pointing not

only to what the putative partners have said, but also to what

they did.4

The district court found that the evidence mustered by

Gosselin in opposition to the motion for summary judgment was

insufficient to ward off “brevis disposition.” Nat’l

Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.

1995). We believe that the district court’s assessment missed

the mark in two ways. First, the district court seemed to

focus on the fact that neither O’Dea nor the Appellees ever

“expressly described” O’Dea as a partner in the firm.

Gosselin, 40 F. Supp. 2d at 48. In so doing, the district

court discounted other facts (both words and conduct) bearing

4
Since the focus of the parties and the district court
was limited to the “holding out” elements, we follow suit and
confine our review to the evidence presented on O’Dea’s and
Appellees’ words and actions as they relate to those elements
of the claim.

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on the “holding out” elements. Secondly, the district court

failed to view those facts through a lens properly adjusted in

accordance with the jurisprudence regarding Rule 56 of the

Federal Rules of Civil Procedure. See, e.g., Reich v. John

Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997); Serapion,

119 F.3d at 987.

The holdings of the Supreme Judicial Court of

Massachusetts (“SJC”) and the Appeals Court of Massachusetts in

a trilogy of decisions define the parameters of the “holding

out” elements. See Standard Oil Co. v. Henderson, 163 N.E. 743

(Mass. 1928); Brown, 460 N.E.2d 1043; Atlas Tack, 637 N.E.2d

230. After close examination of the facts set forth in those

decisions, we conclude that the cases principally relied upon

by the district court, Standard Oil and Brown, are factually

distinguishable from the case sub judice. Because the

determination as to whether a partnership by estoppel exists

necessarily involves a fact-intensive inquiry, we survey the

controlling cases in some detail here.

In Standard Oil, 163 N.E. 743, plaintiff sought to hold

Thomas Henderson, Sr. (“Henderson, Sr.”) liable for the debts

of a gas station operated by Thomas Henderson, Jr. (“Henderson,

Jr.”). Id. at 744. Henderson, Jr. put a sign on the window of

the station: “Henderson & Son.” Id. Henderson, Jr. signed an

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equipment loan agreement with Standard Oil on behalf of

“Henderson & Son.” Id. Henderson, Jr. ran the gas station

while Henderson, Sr. worked in one of the local mills. Id. At

trial, plaintiff presented no direct evidence that Henderson,

Sr. knew of or consented to his name being used in “Henderson &

Son.” Id. The only circumstantial evidence offered on this

point was that it might be inferred that Henderson, Sr. knew of

the “holding out” because he walked by the gas station almost

every day and, therefore, that he saw the sign. Id. Also at

issue in Standard Oil, but not relevant to our discussion, was

the question of whether plaintiff had established the element

of reliance. Id. at 745. The SJC held that “[t]he evidence

presented an issue of fact, and did not warrant the requested

ruling of law that the defendant was a partner by estoppel in

the business carried on under the style of ‘Henderson & Son.’”

Id.

In Brown, 460 N.E.2d 1043, Brown argued that Weiner, who

practiced law with Gerstein, although not as actual partners,

should be held vicariously liable for Gerstein’s malpractice.

After a jury trial, the trial judge granted Weiner’s motion for

judgment notwithstanding the verdict on the grounds that the

evidence was insufficient to establish the second element of

partnership by estoppel, i.e., that any holding out was done

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directly by Weiner or with his consent. 460 N.E.2d at 1046.

In deciding whether the trial judge properly entered judgment

in favor of Weiner, the court applied the standard applicable

to a motion for directed verdict, i.e., whether “anywhere in

the evidence, from whatever source derived, any combination of

circumstances could be found from which a reasonable inference

could be drawn in favor of the plaintiff.” Id. The appeals

court affirmed, finding that “plaintiffs’ proof on consent came

down to Weiner’s knowledge that his name was being used on the

office stationery.” Id. at 1053. Citing to Standard Oil, the

court held that “the use of a person’s name in a business, even

with that person’s knowledge, is too slender a thread to

warrant a favorable finding on the consent element.” Id. The

court found it “of significance” that the plaintiffs’ retainer

check was made payable to Gerstein alone. Id. at 1052-53. The

court also noted that “[t]here was no evidence that the

plaintiffs ever met Weiner or that Weiner rendered any legal

services on their behalf.” Id. at 1052.

In Atlas Tack, 637 N.E.2d 230, the court ruled that

summary judgment should not have been granted where plaintiff

sought to recover damages from two attorneys who shared office

space with a third attorney whose alleged malpractice prompted

the lawsuit. The court focused on the evidence of “holding

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out”: the defendants knew of and consented to the third

attorney (Donabed) using letterhead that bore the legend “Law

Offices of DiMasi, Donabed & Karll, A Professional

Association.” Id. at 232-33. In addition, Donabed used

stationery with this letterhead for bills for legal services

rendered to plaintiff. Id. at 233. Those bills, however, did

not indicate whether payment should have been made to Donabed,

or that the bill was submitted by Donabed and not DiMasi,

Donabed and Karll. Id. The court, relying on an ethics

opinion from the Massachusetts Bar Association Committee on

Professional Ethics, found that “the use of the term

‘professional association’ may well suggest a partnership to

the public which is unlikely to distinguish among partnerships,

professional corporations, and professional associations.” Id.

at 233 (citing Mass. Bar Ass’n Comm’n on Prof’l Ethics, Op. 85-

2 (1985)). The court held that “[a]t the very least, the use

of the term in the circumstances of this case presents a

question of fact as to whether a partnership by estoppel

exists.” Id. at 233.

We cull several guiding principles from these cases.

First, “[o]rdinarily, whether a partnership by estoppel exists

is a question of fact.” Atlas Tack, 637 N.E.2d at 232.

Second, if the only evidence of “holding out” consists of the

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use of a person’s name in a business, even with that person’s

knowledge, the putative partner may escape liability as a

matter of law. Brown, 460 N.E.2d at 1053; Standard Oil, 163

N.E. 743. Finally, where, as here, there is significant

evidence bearing on the “holding out” elements beyond mere use

of the putative partner’s name, summary judgment will not lie.

Atlas Tack, 637 N.E.2d at 233; Brown, 460 N.E.2d 1043.

Against this backdrop of controlling case law, we revisit

the facts offered up by Gosselin. First, O’Dea told the

Gosselins he was “with” Field, Hurley. While the term “with”

may be ambiguous as the district court found, when viewed in

the light most favorable to the Gosselins, it, along with the

other evidence of “holding out” may convey to a reasonable

factfinder that O’Dea shared equal standing with the other

attorneys who make up the “firm” Field, Hurley. Second, there

is the lobby directory: “Field, Hurley, Webb, Sullivan

Attorneys at Law” with O’Dea’s name listed under the individual

Appellees’ names. Such a listing implies a “partnership-like

arrangement.” Mass. Bar Ass’n Comm’n on Prof’l Ethics, Op. 85-

2; see also Atlas Tack, 637 N.E.2d at 233. The directory

listing utilized by Appellees contains no disclaimer of

partnership, nor does it include any limiting description of

O’Dea’s actual relationship to the other “Attorneys at Law”

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listed. Third, O’Dea arranged to meet with Gosselin at the

Field, Hurley offices and arranged for the Gosselins to go

there to sign bankruptcy papers at a time when he would not be

there, all of which may be taken to imply that he had the

authority to use the Field, Hurley offices as an equal member

of the “firm.” Fourth, on at least one occasion, Gosselin

called Field, Hurley and spoke with Sullivan, and on several

other occasions, Gosselin called Field, Hurley and spoke with a

secretary there “[t]o find out what was going on as far as back

wages and ADA claim (sic) and also bankruptcy.” Fifth, in

January 1993, Sullivan agreed to assist with the execution of

the Gosselins’ bankruptcy petition and accommodated O’Dea’s

request that the Gosselins come to the Field, Hurley offices to

sign papers. Sullivan later met with Mrs. Gosselin and advised

her regarding the bankruptcy filing, and acknowledged that he

knew that O’Dea was working on Mr. Gosselin’s claims for back

wages and damages under the ADA.

We have now come full circle. The record before us

reveals many facts, some contested and others undisputed,

bearing on two elements of proof crucial to Plaintiff’s claims.

We find that “the evidence . . . reveals a genuine dispute over

a material fact” such that a reasonable factfinder could

resolve the factual controversy as to whether O’Dea was held

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out as a partner of Appellees in favor of Gosselin. Serapion,

119 F.3d at 987.

Accordingly, we vacate the judgment below and remand for

further proceedings consistent with this opinion.

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