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.
_________________________
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, Larroca & __________________ ____________________________
Lewin, L.L.P. was on brief, for appellants. _____________
David S. Blatt, with whom John K. Villa, Williams & ________________ _______________ ___________
Connolly, James J. Dillon, and Goodwin, Procter & Hoar were on ________ ________________ _______________________
brief, for appellees.
_________________________
October 9, 1997
________________________
________________
*Of the Southern District of New York, sitting by designation.
SELYA, Circuit Judge. St. Ambrose is said to have SELYA, Circuit Judge. _____________
advised St. Augustine that "[w]hen . . . at Rome, live in the
Roman style." John Bartlett, Familiar Quotations 113 (Justin ____________________
Kaplan ed., 16th ed. 1992). In this case, the defendants, a
Boston law firm and its constituent partners (hereinafter
collectively Goodwin, Procter), counselled their erstwhile
clients that when acquiring real estate in Aruba there were
material risks associated with doing so in the Aruban style. The
plaintiffs demurred and instead traveled a path consistent with
St. Ambrose's counsel. Costly problems surfaced after the deal
was done.
Unwilling to absorb the loss in silence, the clients
sued for malpractice. The district court found in the lawyers'
favor. See Sierra Fria Corp. v. Evans, ___ F. Supp. ___ (D. ___ _________________ _____
Mass. 1997) [No. 95-CIV-10106-MEL, slip op.]. The clients
appeal. We affirm.
I. TROUBLE IN PARADISE I. TROUBLE IN PARADISE
Inasmuch as the appellants profess not to contest the
facts as found by the lower court, we lean heavily upon the
opinion below in recounting the relevant events. See id. at ___ ___ ___
[slip op. at 2-18].
In 1991, plaintiffs-appellants Sierra Fria Corporation
and Rodrigo Rocha (hereinafter collectively Rocha) acquired an
option to purchase two Aruban resort hotels, the Divi Divi and
the Divi Tamarijn, from Grape Holding N.V. (Grape) for
approximately $35,000,000. Rocha engaged Goodwin, Procter as
2
lead counsel, with overall responsibility for coordinating legal
due diligence involved in the transaction. The law firm assigned
a partner, Michael Glazer, and an associate, Minta Kay, to work
on the acquisition. Both attorneys specialized in real estate
law, but neither previously had handled an Aruban transaction.
Kay received a draft title memorandum based on Aruban
land records from Ingrid Bleeker, an attorney affiliated with
Smeets, Thesseling & Von Borkhorst (a firm that one of Rocha's
joint venturers had hired for its familiarity with Aruban and
Dutch law). Kay, who had hoped to obtain either title insurance
or an as-built survey or both, expressed concern that the
memorandum lacked solid title assurances. Bleeker informed her
that title insurance was unavailable in Aruba and that Aruban
real estate transactions customarily proceeded without as-built
surveys. The prevailing practice, she said, was to requisition a
title opinion from a local notary. Bleeker also informed Kay
that, if an as-built survey could be obtained at all, it would
necessitate an extremely costly and time-consuming process.
Frank Zeven, a more senior member of the Smeets firm, spoke with
Glazer and confirmed Bleeker's depiction of Aruban real estate
practices.
Based on these conversations, Glazer and Kay understood
that if Rocha purchased the hotels according to Aruban custom, he
risked not knowing exactly what assets he was acquiring. Their
concern heightened when they realized that a time-share complex
(Dutch Village) adjoined the Divi Tamarijn Beach Resort and that
3
no clearly visible dividing line separated the properties. Thus,
Kay spoke to Christopher DeChiario, Rocha's long-time aide. She
explained the hazards of proceeding without a survey, and
DeChiario promised to discuss the matter with Rocha. Glazer
later spoke directly to Rocha about the risks attendant to the
absence of a survey. Rocha indicated that he was not
particularly concerned. Consequently, Goodwin, Procter did not
commission a survey and Kay continued to work with Bleeker to
determine precisely what assets were located on the hotels'
properties.
Bleeker eventually mailed several maps of the
properties to Goodwin, Procter. Kay informed DeChiario that the
maps did not answer the boundary questions and again explained
that, without a survey, Rocha lacked assurance that he was
purchasing all the improvements. DeChiario told Kay to press on
with the transaction notwithstanding the absence of a survey, and
to focus her efforts on securing a cross-use agreement with Dutch
Village that would permit Divi Tamarijn guests to use Dutch
Village's facilities, and vice-versa.
When Glazer and Kay met with Rocha and DeChiario to
iron out some wrinkles in the proposed cross-use agreement, they
once again explained that, absent a survey, a purchaser could not
know whether the envisioned property encompassed all of the
hotels' facilities. Rocha stated that he was not interested in
obtaining a survey and that he was willing to consummate the
seemingly lucrative transaction without one. Kay then drafted a
4
memorandum detailing her concerns and sent copies to Rocha and
DeChiario.
During a subsequent conference call with Rocha and
other investors, Kay again voiced her worries about the location
of various facilities. Rocha grew impatient and made it clear
that speed was his highest priority. He expressed eagerness to
take control of the hotels during the height of the 1991-1992
tourist season, and he indicated a willingness to rely on the
cross-use agreement and the customary Aruban title assurances for
protection.
Goodwin, Procter received a standard Aruban title
opinion from Maria Eman, an Aruban notary, firmed up the cross-
use agreement, and thereafter consummated the transaction on
February 11, 1992. The closing did not bring closure:
approximately one year later, Rocha learned that assets having an
appraised value in excess of $4,000,000 tennis courts, parking
spaces, and an administrative building housing the hotels'
laundry facilities lay on land belonging to Dutch Village.
After unsuccessfully attempting to gain title to the
assets, Rocha invoked diversity jurisdiction, see 28 U.S.C. ___
1332(a) (1994), and brought suit against Goodwin, Procter. In
his complaint, Rocha accused the defendants of negligence and
breach of a contractual obligation to perform legal services
skillfully, prudently, and accurately. Goodwin, Procter denied
Rocha's charges.
The United States District Court for the District of
5
Massachusetts, Morris E. Lasker, District Judge, conducted a
five-day bench trial. The judge then authored an opinion in
which he identified the controlling issue as whether Goodwin,
Procter "informed Rocha of th[e] risk [of proceeding without a
survey] with sufficient emphasis and particularity to make
certain that his decision on whether to consummate the purchase
was intelligent and knowing." Sierra Fria, ___ F. Supp. at ___ ___________
[slip op. at 3]. He resolved this issue in the defendants'
favor, basing his decision primarily on an assessment of the
relative credibility of Glazer, Kay, and Rocha. In particular,
Judge Lasker credited the attorneys' testimony that they
repeatedly had warned Rocha about the dangers attendant to
purchasing the hotels without a survey and found incredible
Rocha's denial that they had uttered such warnings.1 See id. at ___ ___
___ [slip op. at 16].
II. THE LEGAL LANDSCAPE II. THE LEGAL LANDSCAPE
Goodwin, Procter is a Boston-based firm, retained in
Massachusetts. Although the firm devoted its labors to property
located abroad, neither party disputes that Massachusetts law
supplies the substantive rule of decision. We therefore survey
Massachusetts legal malpractice law to determine whether Goodwin,
Procter's conduct falls safely within its boundaries. See Borden ___ ______
v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991); __________________________
____________________
1The court also ruled against Rocha on a variety of other
claims. See Sierra Fria, ___ F. Supp. at ___, ___ [slip op. at ___ ___________
23-24, 28]. None of those rulings has been appealed and,
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 in a
legal malpractice case to show that the attorney had a duty to
the client, that he breached the duty, and that his breach
proximately caused the plaintiff's harm. See Fishman v. Brooks, ___ _______ ______
487 N.E.2d 1377, 1379-80 (Mass. 1986). The first element is
indigenous to the attorney-client relationship; in Massachusetts,
as elsewhere, an attorney owes his or her client a duty to
exercise a reasonable degree of care and skill in the performance
of legal tasks. See Wagenmann v. Adams, 829 F.2d 196, 218 (1st ___ _________ _____
Cir. 1987); Pongonis v. Saab, 486 N.E.2d 28, 29 (Mass. 1985). ________ ____
The second element is of critical importance here. Under it, the
plaintiff "must demonstrate that the attorney failed to exercise
reasonable care and skill in handling the matter for which the
attorney was retained." Colucci v. Rosen, Goldberg, Slavet, _______ _________________________
Levenson & Wekstein, 515 N.E.2d 891, 894 (Mass. App. Ct. 1987). ___________________
The third element is standard fare in tort actions and requires
no discussion in connection with Rocha's central theory of
liability; if, on these facts, closing without a survey
constituted malpractice, then the harm to Rocha is manifest.
Of course, generalized concepts of duty and breach must
be adapted to fit particular contexts. Thus, when a client seeks
advice from an attorney, the attorney owes the client "a duty of
full and fair disclosure of facts material to the client's
interests." Williams v. Ely, 668 N.E.2d 799, 806 (Mass. 1996). ________ ___
This means that the attorney must advise the client of any
7
significant legal risks involved in a contemplated transaction,
and must do so in terms sufficiently plain to permit the client
to assess both the risks and their potential impact on his
situation. Consequently, in a legal malpractice action that
implicates an attorney's performance of his counseling function,
the trier of fact must determine whether the attorney's advice
permitted the client adequately to weigh the risks involved in a
given course of action. See id. ___ ___
III. ANALYSIS III. ANALYSIS
Although Rocha presents a multifaceted asseverational
array, his appeal boils down to two interlocking claims of error.
We examine them sequentially.
A. A. __
The appellant posits that the district court's opinion
violates Fed. R. Civ. P. 52(a) and thereby precludes effective
appellate review. This proposition is unfounded.
In terms, Rule 52(a) dictates that, in a bench trial,
the court "shall find the facts specially and state separately
its conclusions of law." This directive "impose[s] on the trial
court an obligation to ensure that its ratio decidendi is set _____ _________
forth with enough clarity to enable a reviewing court reliably to
perform its function." Touch v. Master Unit Die Prods., Inc., 43 _____ ____________________________
F.3d 754, 759 (1st Cir. 1995). But this imperative has a
practical, commonsense cast. Rule 52(a) requires trial judges
neither to pen exhaustive dissertations nor to make findings and
conclusions that are exquisitely precise. As long as the trial
8
court clearly relates the findings of fact upon which its
decision rests and articulates in a readily intelligible manner
the conclusions that it draws by applying the controlling law to
the facts as found, no more is exigible. See Peckham v. ___ _______
Continental Cas. Ins. Co., 895 F.2d 830, 842 (1st Cir. 1990). __________________________
Judge Lasker's twenty-eight page opinion clears this hurdle with
room to spare.
We need not tarry. The judge's rescript recapitulates
the trial testimony of the key witnesses, limns a series of
credibility calls, delineates reasons for crediting the testimony
of some witnesses and discounting that of others, and traces the
inferences that flow from the credited testimony. The judge's
thorough exposition of his factual findings stands in marked
contrast to the unsupported generalizations that have triggered
Rule 52(a) concerns in the cases upon which Rocha relies. See, ___
e.g., Touch, 43 F.3d at 758-59; Pearson v. Fair, 808 F.2d 163, ____ _____ _______ ____
166 (1st Cir. 1986) (per curiam).
Rocha tries to minimize the district court's
thoroughness. Regardless of the battery of factual findings, he
says, the judge made only a single conclusion of law and, thus,
did not comply with Rule 52(a). This is little more than
whistling past the graveyard. Rule 52(a) announces a
qualitative, not a quantitative, standard and here, Goodwin,
Procter either was or was not guilty of negligence in its
representation of Rocha. Since the judge made the solitary legal
conclusion necessary for resolution of the action, our inquiry
9
focuses on the clarity of that conclusion.
Judge Lasker framed the applicable legal standard in
terms of whether the law firm informed its client of the risks of
proceeding without a survey "with sufficient emphasis and
particularity to make certain that his decision on whether to
consummate the purchase was intelligent and knowing." Sierra ______
Fria, ___ F. Supp. at ___ [slip op. at 3]. This formulation is ____
entirely consistent with Massachusetts law. See supra Part II. ___ _____
The judge then applied the standard to the discerned facts. See ___
Sierra Fria, ___ F. Supp. at ___ [slip op. at 17-18]. In so ___________
doing, he provided a clearly marked roadmap that shows how he
reached a decision in this case. The jurisprudence of Rule 52(a)
does not require more exegetic treatment. See, e.g., Fasolino ___ ____ ________
Foods Co. v. Banca Nazionale del Lavoro, 961 F.2d 1052, 1058 (2d _________ __________________________
Cir. 1992); Westside Property Owners v. Schlesinger, 597 F.2d _________________________ ___________
1214, 1216 n.3 (9th Cir. 1979).
B. B. __
Next, Rocha (who is represented by fresh counsel on
appeal) mounts a direct challenge to the lower court's decision
on the merits. His new lawyer says that he is contesting only
the court's legal conclusion, not its factfinding. Therefore, he
argues, we must undertake de novo review of the decision.
Goodwin, Procter not only defends Judge Lasker's decision, but
also disparages Rocha's attempt to import a de novo standard of
review into the case. We address this standard-of-review
imbroglio before turning to the various facets of Rocha's main
10
claim.
1. 1.
We have made it pellucid that "appeals in the federal
court system are usually arrayed along a degree-of-deference
continuum, stretching from plenary review at one pole to highly
deferential modes of review . . . at the opposite pole." In re _____
Extradition of Howard, 996 F.2d 1320, 1327 (1st Cir. 1993). In ______________________
the ordinary case, this paradigm requires the court of appeals to
scrutinize the trial court's answers to purely legal questions de
novo and to assess the trial court's answers to straight factual
questions for clear error. See id. ___ ___
There is, however, a middle ground which consists of
the trial court's answers to mixed questions of law and fact
and that middle ground is not amenable to a single standard-of-
review rubric. Rather, the applicable standard of review varies
depending upon the nature of the mixed question; the more fact-
dominated it is, the more likely that deferential, clear-error
review will obtain, and the more law-dominated it is, the more
likely that non-deferential, de novo review will obtain. See id. ___ ___
at 1328.
Putting the issue that Rocha seeks to raise in its
proper place along the law/fact continuum ends the instant
standard-of-review controversy. Though Rocha casts his argument
artfully, it is perfectly plain that determining whether Goodwin,
Procter exercised due care in representing Rocha is a fact-
intensive exercise, see Brennan v. Hendrigan, 888 F.2d 189, 193 ___ _______ _________
11
(1st Cir. 1989), and the district court, sitting without a jury,
appropriately treated it as such. The proof of the pudding is
precedential; we consistently have reviewed adjudications of
negligence arising in the course of bench trials by reference to
the clearly erroneous test.2 See, e.g., La Esperanza de P.R., ___ ____ ______________________
Inc. v. Perez y Cia. de P.R., Inc., ___ F.3d ___, ___ (1st Cir. ____ ___________________________
1997) [No. 96-1904, slip op. at 11]; Clement v. United States, _______ _____________
980 F.2d 48, 53 (1st Cir. 1992); DeGuio v. United States, 920 ______ _____________
F.2d 103, 105 (1st Cir. 1990); Obolensky v. Saldana Schmier, 409 _________ _______________
F.2d 52, 54 (1st Cir. 1969).
Under this format, we may reverse the district judge's
conclusion that Goodwin, Procter did not act negligently only if,
"after careful evaluation of the evidence, we are left with an
abiding conviction that those determinations and findings are
simply wrong." State Police Ass'n v. Commissioner, ___ F.3d ___, __________________ ____________
___ (1st Cir. 1997) [No. 97-1319, slip op. at 9]; accord Cumpiano ______ ________
v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990). _____________________
Moreover, to the extent that Rocha seeks to evade the application
of this standard by the heavy-handed expedient of creative
labelling, he is painting with an empty palette. See Reliance ___ ________
Steel Prods. Co. v. National Fire Ins. Co., 880 F.2d 575, 577 _________________ ________________________
(1st Cir. 1989) (declaring that this court "will not permit
____________________
2This does not mean that clear-error review applies up and
down the line. For example, a judge's determination whether a
plaintiff has adduced sufficient evidence to create a question of
fact on the issue of negligence is itself a question of law,
subject to de novo review. See Cort s-Irizarry v. Corporaci n ___ _______________ ___________
Insular de Seguros, 111 F.3d 184, 187, 189-91 (1st Cir. 1997); ___________________
Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir. 1995). _____ ________________
12
parties to profit by dressing factual disputes in `legal'
costumery").
2. 2.
The merits need not detain us. Here, the district
judge accepted the facts surrounding the transaction very much as
stated by Glazer and Kay, rejecting Rocha's contrary account. We
do not find the judge's decision to disbelieve Rocha's testimony
clearly erroneous. Ample evidence controverted Rocha's protest
that he was unaware of the dangers inherent in closing without a
survey, including the lawyers' testimony and various documentary
evidence (notes, memos, and letters). Credibility determinations
fall squarely within the trier's preserve, see, e.g., Anthony v. ___ ____ _______
Sundlun, 952 F.2d 603, 606 (1st Cir. 1991), and for good reason: _______
where a judge presides at a bench trial, observes the witnesses'
demeanor, and hears their words as they are uttered, he is far
better equipped to gauge their veracity (or lack of veracity)
than is an appellate panel consigned to sift a paper record after
the fact. Hence, we decline the appellant's implicit invitation
to disturb the judge's credibility-based findings.
This determination does not end our work. We still
must evaluate the judge's conclusion, based on his acceptance of
the attorneys' testimony, that Goodwin, Procter was not
negligent. Having performed this evaluation, we find no error.
The losing party always faces an arduous climb when he
attempts to impugn a factbound finding (such as a finding of no
negligence) that results from a bench trial. Here, however,
13
Rocha's difficulties are twice compounded. For one thing, the
ascent becomes steeper when the loser bears the burden of proof
on the issue. For another thing, the grade increases still more
when the trier rests the challenged finding on a credibility
judgment. Recognizing the inhospitable nature of the terrain,
Rocha argues that, even accepting Glazer's and Kay's narrative of
what transpired, Goodwin, Procter's unfocused advice
particularly the firm's inadequate explanation of the cost and
time requirements of an Aruban survey and its failure to suggest
a post-closing arrangement as an alternative protective mechanism
did not allow Rocha to weigh his options realistically.
In assembling this argument, Rocha overstates the
relevant standard of care. Massachusetts law requires an
attorney performing a counseling function to advise the client in
a manner that permits the latter intelligently to assess the
risks of taking (or declining to take) a particular action. But
lawyers even high-priced lawyers ordinarily are not
guarantors of favorable results. It is neither fair, practical,
nor legally appropriate to benchmark an attorney against a
standard of prescience. Thus, lawyers are not obliged to relate
in exquisite detail every fact or circumstance that might
conceivably have a bearing on the client's business decision or
to anticipate remote risks. See Williams, 668 N.E.2d at 806. By ___ ________
the same token, lawyers are not expected to persist relentlessly
when clients especially clients who are sophisticated
businessmen choose to go forward after being suitably informed
14
of looming risks. See Conklin v. Hannoch Weisman, P.C., 678 A.2d ___ _______ _____________________
1060, 1069 (N.J. 1996) (stating that "an attorney has no
obligation `to lie down in front of a speeding train' to prevent
a bad deal"); Horn v. Moberg, 844 P.2d 452, 455 (Wash. Ct. App. ____ ______
1993) (similar); Gill v. DiFatta, 364 So. 2d 1352, 1354-56 (La. ____ _______
Ct. App. 1978) (similar); see generally Ronald E. Mallen & ___ _________
Jeffrey M. Smith, 2 Legal Malpractice 20.2 (4th ed. 1996). _________________
Then, too, expert testimony almost always is required
to establish the standard of care in a legal malpractice action.
See Wagenmann, 829 F.2d at 218-19; Pongonis, 486 N.E.2d at 29. ___ _________ ________
This case falls comfortably within the sweep of that abecedarian
rule. And given the facts as found, the expert testimony adduced
at trial does not support the claim of negligence, but, rather,
confirms that Goodwin, Procter adhered to the applicable standard
of care when it advised Rocha of the risks inherent in proceeding
without a survey.
The parties each offered one expert witness who dealt
substantively with the standard of care applicable to attorneys
practicing in Massachusetts.3 Rocha's expert, Stoddard Platt,
testified that Goodwin, Procter had two viable options when
addressing the survey problem: to locate and commission Dutch-
speaking surveyors to fly to Aruba and map the properties, or to
warn Rocha about the perils of closing without a survey and
____________________
3While Rocha presented an additional expert witness
(Professor Richard Perlmutter), he served only to confirm that
the substantive testimony of Rocha's principal expert (which had
been cast in terms of the New York standard of care) applied
equally in Massachusetts.
15
permit him to make an informed decision about whether to proceed.
For the purpose of his testimony, Platt assumed that Goodwin,
Procter never warned Rocha about these hazards and thereby
transgressed the standard of care. Goodwin, Procter's expert,
Phillip Nexon, started from a different premise. He assumed the
truth of Glazer's and Kay's testimony that they repeatedly
cautioned Rocha and concluded that these warnings satisfied the
standard of care.
Once the judge resolved the assumptions underlying each
expert's testimony in Goodwin, Procter's favor, any substantive
dissonance vanished. Rocha's expert admitted as much when he
acknowledged that if "the client was brought in, . . . the issues
were discussed with the client and the client decided to proceed
without a survey," then Goodwin, Procter fulfilled its
obligations to Rocha. That, of course, is precisely what
happened here or so the trier supportably found. In light of
this testimonial harmony, we have no warrant to set aside, under
principles of clear-error review, the district court's conclusion
that Goodwin, Procter did not negligently advise Rocha.
3. 3.
On appeal, Rocha attempts to blunt the force of this
reasoning by insisting that Goodwin, Procter negligently failed
to explore the possibility of offsetting the absence of a survey
by constructing some type of post-closing arrangement. This
16
argument founders on evidentiary shoals.4
First, Platt Rocha's expert testified that he had
never consummated a real estate transaction that included a post-
closing survey component. This jibed with the testimony of Nexon
Goodwin, Procter's expert who classified post-closing surveys
as "not customary." Further, Rocha adduced no evidence that
another type of post-closing arrangement could have remedied the
boundary problems, much less that customary Massachusetts
practice suggested some such arrangement.
Second, and perhaps more fundamentally, the record
contains no expert testimony that the Massachusetts standard of
care required Goodwin, Procter to recommend any post-closing
arrangement to Rocha. We reiterate that Rocha's expert testified
that the lawyers could conform to the standard of care either by
commissioning a survey or by warning Rocha of the risks of
proceeding without one. To avoid this evidentiary obstacle,
Rocha appears to argue that even after he made an informed
decision to proceed without a survey, Goodwin, Procter had some
residual duty to suggest a prophylactic post-closing arrangement.
Yet, Rocha points to no expert testimony that supports this
formulation of the standard of care. While "expert testimony is
not essential where the claimed legal malpractice is so gross or
obvious that laymen can rely on their common knowledge to
____________________
4In point of fact, Goodwin, Procter did discuss and
implement a post-closing arrangement the cross-use agreement
in an effort to ameliorate the risks inherent in purchasing the
hotels without an as-built survey.
17
recognize or infer negligence," Pongonis, 486 N.E.2d at 29, this ________
narrow exception to the expert testimony requirement does not
encompass Rocha's sophisticated theory of negligence.
We summarize succinctly. Given the evidence of record,
it is readily apparent that the district court's conclusion is
not poisoned by Goodwin, Procter's failure to suggest a post-
closing arrangement as an antidote to the absence of a survey.
4. 4.
Rocha's last asseveration is a variation on these
themes. He maintains that he agreed to proceed without a survey
only on the condition that he receive the same title assurances
as the prospective first mortgagee, Bank of Nova Scotia (BNS).
To the extent that Rocha couches this contention in terms of an
implied contract, he failed to raise it below and therefore
cannot raise it for the first time on appeal. See Correa v. ___ ______
Hospital San Francisco, 69 F.3d 1184, 1191 (1st Cir. 1995), cert. ______________________ _____
denied, 116 S. Ct. 1423 (1996); Martinez v. Colon, 54 F.3d 980, ______ ________ _____
987 (1st Cir.), cert. denied, 116 S. Ct. 515 (1995). _____ ______
Even if Rocha had not waived this contention, it would
fail on the merits. Glazer testified that when he told Rocha
that he would receive the same assurances as BNS, he meant that
Rocha would receive the same title report prepared by the same
Aruban notary. Glazer further testified that Rocha "got
fundamentally the same [assurances], or lack of assurances," as
BNS. The trial judge reasonably credited all of Glazer's
testimony. Under these circumstances, the appellant's attempt to
18
transmogrify this factual issue into an issue of law fizzles.
See Reliance Steel, 880 F.2d at 577. ___ ______________
IV. CONCLUSION IV. CONCLUSION
We need go no further. The district court warrantably
found that Goodwin, Procter warned Rocha time and again about the
risks inherent in completing the transaction without a survey,
that Rocha failed to heed those warnings, and that Rocha paid the
price for his hubris, both literally and figuratively. Since
those warnings fully complied with the standard of care that
Massachusetts law requires of practicing attorneys, we are not at
liberty to reverse the entry of judgment in the defendants'
favor.
Affirmed. Affirmed. ________
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