
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2381                               KANSALLIS FINANCE LTD.,                                Plaintiff, Appellant,                                          v.                               DANIEL J. FERN, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 94-1010                               KANSALLIS FINANCE LTD.,                                 Plaintiff, Appellee,                                          v.                               DANIEL J. FERN, ET AL.,                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. D. Brock Hornby, U.S. District Judge*]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                    ____________________             * Of the District of Maine, sitting by designation.                                 ____________________            James  W. Murphy  with whom  Frederic L.  Ellis was  on  brief for            ________________             __________________        Kansallis Finance Ltd.            Eric Lund  with whom Susan R.  Riedel was on  brief for Daniel  J.            _________            ________________        Fern, et al.                                 ____________________                                   November 2, 1994                                 ____________________               COFFIN, Senior  Circuit Judge.  Plaintiff  Kansallis Finance                       _____________________          Ltd.  ("Kansallis")  brought  this diversity  suit  against  four          lawyers, asserting  that they  were vicariously liable  for fraud          committed  by their purported law partner.  A jury trial resulted          in judgment  for the  defendants, Daniel Fern,  Richard Anderson,          Robert Donahue and Charles Sabatt.  Both plaintiff and defendants          now appeal, raising challenges to the sufficiency of the evidence          to support  various fact-findings,  as well as  two questions  of          Massachusetts  law on  which there  is either  conflicting or  no          clearly established  precedent.   We uphold the  factual findings          and  certify the  legal  questions to  the Massachusetts  Supreme          Judicial Court ("SJC").                                        Background                                      __________               This  lawsuit   stems  from  a  loan   and  lease  financing          transaction  whose precise details are not relevant to any of the          issues  on appeal.   What  is important  is that,  in advance  of          consummating the  loan, Kansallis sought and  obtained an opinion          letter from  defendants'  purported law  partner, Stephen  Jones,          which  was  issued  on  letterhead  captioned  "Fern,   Anderson,          Donahue,  Jones &  Sabatt, P.A."   The  letter contained  several          intentional misrepresentations concerning the transaction and was          part  of a conspiracy by Jones and  others (though not any of the          defendants  here)   to  defraud  Kansallis.     Jones  was  later          criminally  convicted for  his part  in the conspiracy,  in which          Kansallis  lost more than $880,000.  Unable to collect from Jones          or any  of the  loan's guarantors, Kansallis  sought compensation                                         -3-          from defendants on  the theory  that they and  Jones were  either          actual  partners or  partners  by estoppel,  and  that they  were          liable  for the  fraudulent  opinion letter  Jones  caused to  be          issued on the firm stationery.1               The case  went to trial.  Both the judge and jury found that          Jones  and the  defendants were  partners at the  relevant time,2          but, for  different reasons, they concluded  that defendants were          not liable for Jones's conduct.   The jury's verdict was based on          its  findings  that Jones  did not  have  authority to  issue the          opinion  letter  on  behalf  of  the  partnership,  and  that the          issuance of the  opinion letter was not  within the scope of  the          partnership.   The  district court  made independent  findings of          fact  on  plaintiff's   claim  under  a   Massachusetts  consumer          protection statute, Mass. Gen. L.  ch. 93A.  Unlike the jury,  it          found  that  the  partnership  had clothed  Jones  with  apparent                                         ___          authority  to issue the letter  on its behalf.   Nonetheless, the          court  went on  to  hold, as  a  matter of  law, that  "innocent"          partners may not be  held vicariously liable under 93A  for their          partners' fraudulent acts.  In other words, the court held that a          partner, entirely unaware  and uninvolved with  another partner's          fraud, is  immune from vicarious  liability under 93A,  even when                                        ____________________               1    Jones did  not personally sign the  letter, but instead          arranged for a  third party  to do  so.   Both the  jury and  the          district court  found that,  by this  conduct,  Jones adopted  or          ratified the issuance of the opinion  letter.  Since no party has          appealed these findings, we take them as given.               2    The district court  also found that, even if  they were          not actual partners, they were partners by estoppel.                                           -4-          the conduct constituting the fraud was authorized.     The  court          also found that the  conduct giving rise to  the 93A claim  arose          "substantially in  Massachusetts," thus making it  subject to the          statute.  See Mass. Gen. L. ch. 93A,   11.                      ___               On appeal, each side challenges the factual findings adverse          to  its  position.   Kansallis  also  asserts  two  legal errors.          First,  it  finds  error in  the  court's  ruling that  vicarious          liability  cannot attach to  "innocent" partners in  a 93A claim.          Instead, based  on the court's  fact-finding that the  letter was          issued with the firm's apparent authority, Kansallis asserts that          normal principles of vicarious liability as among partners should          apply  to make defendants liable  for Jones's fraud.   Second, it          argues that the jury's  finding that the letter was not issued in          the  ordinary course  of the  partnership was  made only  upon an          erroneous jury instruction.  Specifically, Kansallis submits that          it was error to charge the jury that, for the letter to have been          issued in the  course of  the partnership, Jones  must have  been          motivated  at  least  in   part  by  the  intent  to   serve  the          partnership.   It argues that, while such  motivation is required          in an  employer-employee context, no such  requirement is present          here.                                       Discussion                                      __________               We  first review the  evidence to support  the various fact-          findings.   Because  we  affirm  these  findings,  we  are  faced          squarely  with the two legal issues raised by Kansallis.  Finding          no clearly  established precedent  on one of  the questions,  and                                         -5-          conflicting  precedent on the other,  we certify both  to the SJC          pursuant to its Rule 1:03.          I.   Sufficiency  of  the Evidence  to Support  the Fact-Findings               ____________________________________________________________               Defendants argue that it was error for both the jury and the          judge to find that they were  Jones's partners.  They also submit          that it was error for the  judge to find that the partnership had          granted Jones apparent authority to cause the letter to be issued          on  its  behalf.    Finally,  they  find  error  in  the  judge's          determination  that the  conduct  giving rise  to  the 93A  claim          occurred  primarily  and   substantially  within   Massachusetts.          Plaintiff, for its part,  asserts that it was error for  the jury          to decide that defendants  had not granted authority to  Jones to                                         ___          issue  the opinion  letter.   We find  no merit  in any  of these          contentions.           A.   Partnership               ___________               Under Massachusetts law, a partnership "is an association of          two  or more  persons  to carry  on as  co-owners a  business for          profit."  Mass. Gen. L. ch. 108A,   6.  See also Loft v. Lapidus,                                                  ___ ____ ____    _______          936  F.2d  633,  636  (1st  Cir.  1991).    Several  factors  are          considered  to  determine  if  a  partnership  exists.    A  non-          exhaustive  list includes: whether there is  "(1) an agreement by          the  parties  manifesting  their  intention  to  associate  in  a          partnership (2) a sharing  by the parties of profits  and losses,          and (3) participation by the parties in the control or management          of the enterprise."  Fenton v. Bryan, 33 Mass. App. Ct. 688, 691,                               ______    _____          604 N.E.2d 56, 58 (1992).  See  also Mass. Gen. L. ch. 108A,    7                                     ___  ____                                         -6-          (providing additional  rules for  determining the existence  of a          partnership).    While  a  partnership  undoubtedly  requires  an          agreement  among the  partners,  that agreement  need  not be  in          writing.   Rather, intent to carry on business as partners may be          inferred from  the partners' words and  acts.  Loft, 936  F.2d at                                                         ____          636-37.                 We  uphold  the fact-findings  below on  the existence  of a          partnership unless that determination  was clearly erroneous, id.                                                                        ___          at  636,  a  standard  that  requires  "'the  definite  and  firm          conviction that  a mistake  has been committed,'"  American Title                                                             ______________          Ins. Co. v. East West Financial, 16 F.3d 449, 453 (1st Cir. 1994)          ________    ___________________          (quoting United States v. United States Gypsum Co., 333 U.S. 364,                   _____________    ________________________          395 (1948)).               The evidence adduced at trial was sufficient  to support the          finding that defendants and Jones were indeed law partners at the          time  the  fraudulent   opinion  letter  was   issued.    It   is          uncontroverted that  Daniel Fern and Richard  Anderson became law          partners in the early  1960s and that Robert Donahue  and Stephen          Jones joined that partnership in the 1970s.  Defendants  maintain          that, while  Sabatt joined the firm in the early 1980s, he did so          as  an  employee only.   They  also  submit that  the partnership          dissolved in  1981  and,  while all  four  defendants  and  Jones          continued   to   share   office   space,   secretarial  services,          letterhead,  a central card file  of clients, and  so forth, they          did so as a  professional association of individual practitioners                                         -7-          only, laying much emphasis on the fact that their letterhead used          the denomination "P.A." after listing their names.               The jury and district court were entitled to  discredit this          defense.   The record shows that Fern, Anderson, Donahue, Jones &          Sabatt filed partnership tax returns for several years past 1981,          the  year  the partnership  allegedly  dissolved,  and that  each          partner's share of profits  was calculated in the same  manner in          1980, when the  firm was admittedly a partnership, as  it was for          several years thereafter.   Receipt of  a share of  profits in  a          business  is itself prima facie  evidence of a  partnership.  See                                                                        ___          Mass. Gen. L. ch.  108A,   7(4).  In  addition to the indicia  of          partnership  already  described,   the  firm's  internal  ledgers          referred to itself  as a  partnership, the phone  at the  "shared          office  space"  was  answered  in  the  name  of  the  firm,  and          defendants advertised themselves as a firm in both the phone book          and  the  lawyer's directory  Martindale-Hubbell,  held accounts,                                        __________________          investments  and insurance in the  name of the  firm, and renewed          their  lease in the name  of the firm  -- specifically describing          themselves  as a  partnership.3   Though they  offer explanations                                        ____________________               3    The original lease  was made in  1974, when Sabatt  had          not yet joined  the firm, in the name of "Fern, Anderson, Donahue          & Jones, a partnership  consisting of Daniel J. Fern,  Richard C.          Anderson, Robert J. Donahue and Stephen C. Jones."  When the firm          renewed its  lease in 1983,  it did not advise  the landlord that          the partnership had "dissolved"  or that Sabatt had been  named a          partner.  We also  note that Jones and defendants  Fern, Anderson          and Donahue were co-owners  of certain accounts without defendant          Sabatt.  Thus,  the renewed lease, as well as  those accounts for          which  Sabatt  was not  listed as  a  co-owner, only  bolster the          finding  of partnership  as  between Jones  and defendants  Fern,          Anderson  and  Donahue.    Nonetheless,  the  totality  of  other          evidence is sufficient to  support the finding by both  the judge                                         -8-          for  these  circumstances  consistent   with  the  absence  of  a          partnership, it was  not clear  error to come  to the  conclusion          that  defendants were law partners at the time the opinion letter          was issued.            B.   Authority               _________               Both parties  urge us to overturn the findings below related          to authority: defendants argue that the evidence was insufficient          to  support the district court's finding that there was authority          to issue the letter,  while plaintiff asserts that, based  on the          evidence, it was  error for the  jury to find  that there was  no          authority.    Despite  the  apparent  incongruity   of  different          conclusions by the jury and judge on this question, we hold  that          neither  one is clearly erroneous.  While the evidence was strong          enough to permit a finding  of apparent authority, it was not  so                    ______          overwhelming as to require one.                             _______               Massachusetts law recognizes apparent authority where               "conduct by the principal  . . . causes a  third person               reasonably to believe  that a particular  person . .  .               has  authority to  enter into  negotiations or  to make               representations as his agent."  If a  third person goes               on  to   change  his  position  in   reliance  on  this               reasonable  belief,  the  principal  is  estopped  from               denying that the agency is authorized.          Hudson  v. Massachusetts  Property Ins.  Underwriting  Ass'n, 386          ______     _________________________________________________          Mass.  450, 457, 436 N.E.2d 155, 159 (1982) (quoting W.A. Seavey,          Agency    8D, at 13 (1964)) (citations omitted); accord Putnam v.                                                           ______ ______          DeRosa,  963 F.2d  480, 484  (1st Cir.  1992).   Whether apparent          ______          authority  exists is a question of fact.  Consolidated Rail Corp.                                                    _______________________                                        ____________________          and jury that Sabatt was also a member of the partnership.                                         -9-          v. Hallamore Motor Trans., Inc., 394 Mass. 56, 59 n.2, 473 N.E.2d             ____________________________          1137, 1139  n.2 (1985).   We  thus affirm  unless there has  been          clear error.  Fed. R. Civ.  P. 52(a); American Title Ins. Co., 16                                                _______________________          F.3d at 453.               As indicated,  the district  judge, making findings  of fact          independently of the jury on the cause of action under 93A, found          that  Jones  did have  apparent  authority to  issue  the opinion          letter on behalf  of the partnership, and that  Kansallis changed          its  position in reasonable reliance on that authority.  There is          sufficient evidence in the record to support this conclusion.  In          general,  defendants manifested  to  the world  signs that  could          reasonably  lead  third  parties  to  believe  they  were  a  law          partnership,  each authorized to act  and speak on  behalf of the          firm: their shared letterhead, offices, and office support staff,          their  common  office  signs  and  joint  listings  in  telephone          directories  and  Martindale-Hubbell.    But  more  specifically,                            __________________          defendants manifested to Kansallis a relationship with Jones that          led Kansallis to believe Jones was authorized to issue the letter          on  behalf  of the  partnership: they  caused  their phone  to be          answered in the firm's name, thus making reasonable the inference          that  Kansallis's lawyer's phone calls to  Jones were answered in          the  firm's name; they allowed Jones unrestricted use of the firm          stationery; and they erected  no general limitations or clearance          procedures for  the issuance  of legal  opinion  letters on  firm          stationery.  By  doing so, they  encouraged Kansallis to  believe          that  the  firm, and  not just  Jones,  stood behind  the opinion                                         -10-          letter.   Whether they had done enough to make Kansallis's belief          reasonable is a question that is "uniquely within the competence"          of the fact finder.   Devaux v. American Home Assurance Co.,  387                                ______    ___________________________          Mass. 814,  819, 444 N.E.2d 355,  358 (1983).  There  is no clear          error in the judge's decision that it was reasonable.               Likewise,  there is  no clear  error in the  jury's contrary          conclusion.   The opinion  letter was  not signed by  any of  the          named partners,  nor in the name  of the firm, as  is customarily          the practice for legal opinion letters.  Rather, it was signed by          an  individual who  turned  out to  be  an employee  of  Iyanough          Management  Co., a  company of  which Jones  was a  principal and          which  Jones  used  to  facilitate  the  fraud.     The  Iyanough          employee's name  nowhere appeared  on the law  firm's letterhead.          Indeed,  Kansallis's New  York  lawyer, who  dealt directly  with          Jones  in  the  transaction,  specifically asked  him  to  revise          language  in  the  letter  so that  the  crucial  representations          concerning  the transaction were  made by the  collective "we" --          ostensibly  the firm  --  and not  the  individual "I."4    Thus,          whether the  letter spoke on  behalf of  the firm already  was an          important concern to Kansallis's lawyer,  and the jury was within          its  purview to  decide  that she  should  have obtained  further          assurances  before   concluding  that   it  did.     Under  these                                        ____________________               4    It  is only the conduct  of the principal,  and not the          conduct  of  the  agent,  that  may  create  apparent  authority.          Sheinkopf v. Stone,  927 F.2d 1259, 1269 (1st Cir.  1991).  Thus,          _________    _____          the  fact  that  Jones  made  this   change  in  language,  which          undoubtedly  heightened Kansallis's  belief that  the firm  stood          behind  the  letter,  does   not  help  Kansallis  show  apparent          authority.                                           -11-          circumstances, the  jury's finding that Jones  was not authorized          to  issue the  letter  on  the  firm's  behalf  was  not  clearly          erroneous.           C.   Whether the  93A Claim Arose Substantially  and Primarily in               ____________________________________________________________               Massachusetts               _____________               Appellees assert that the district court erred in concluding          that  the conduct giving rise to the 93A claim occurred primarily          and  substantially within Massachusetts,  thus making the conduct          subject to the statute  under Mass. Gen. L. ch. 93A,    11.  They          rely  on the  facts  that  the  opinion  letter  was  drafted  by          Kansallis's lawyers in New York and that a central element of the          conspiracy  -- making  fraudulent U.C.C.  filings --  occurred in          Maine.   Notwithstanding these facts, the  partnership existed in          Massachusetts and  the crucial letter  that formed the  basis for          the  entire  cause of  action  by linking  defendants  to Jones's          liable conduct was executed there.  Further, the fraud culminated          there  because Kansallis disbursed the "loan  money" to Jones and          others in Massachusetts.  Finally, we note that   11 provides  an          exemption from 93A liability, available as a defense, rather than          a jurisdictional  prerequisite to suit, and  thus defendants bear          the  burden  of  proving  a  lack   of  primary  and  substantial          involvement  in  Massachusetts.     See  ch.  93A,      11  (last                                              ___          paragraph).  There is no clear error here.           II.  Legal Issues               ____________               Kansallis's legal challenges are not so easily resolved.  It          argues  that the district court erroneously  concluded that, in a          cause of action  pursuant to 93A, general principles of vicarious                                         -12-          liability5 are  inapplicable to "innocent partners,"  i.e., those          who  were entirely  unaware and  uninvolved with  their partner's          actionable conduct, even if such conduct was authorized.  We have          found no controlling Massachusetts precedent on this issue, which          is determinative  of the  93A claim.   We  therefore think  it is          appropriate to  certify the question  to the SJC.   See Nieves v.                                                              ___ ______          University  of Puerto  Rico,  7 F.3d  270,  274 (1st  Cir.  1993)          ___________________________          (absent controlling  state law  precedent, federal  appeals court          sitting  in  diversity  has   discretion  to  certify  state  law          questions  to  highest state  court);  SJC  Rule 1:03  (accepting          certified questions  that  are claim-determinative  and on  which          there is no SJC controlling precedent).               Kansallis  raises another legal issue  on which we also need          guidance from the SJC.  The district court charged the jury that,          in  order to  find  defendants vicariously  liable  based on  the          theory  that  Jones's  conduct  was  within   the  scope  of  the          partnership, it would have to find, inter alia, that Jones acted,                                              __________          at least in  part, with  the intent to  benefit the  partnership.          This seems to be the rule  as articulated in Wang Laboratories v.                                                       _________________          Business Incentives,  398 Mass. 854,  859, 501 N.E.2d  1163, 1166          ___________________          (1986).   However, there is no motivation requirement in the test          articulated by  New England Acceptance v.  American Manufacturers                          ______________________     ______________________                                        ____________________               5    See  Mass. Gen.  L.  ch. 108A,     13 ("Where,  by  any                    ___          wrongful act  or omission of any partner . . . with the authority          of  his  co-partners,  loss or  injury  is  caused  to any  [non-          partner],  or any penalty is incurred,  the partnership is liable          therefor  to the same extent as the partner so acting or omitting          to act.").                                         -13-          Ins. Co., 373 Mass. 594, 597, 368 N.E.2d 1385 (1977) (adopting as          ________          its  own  the  appeals  court  holding  that  principals  may  be          vicariously liable  for the acts  of their agents  "regardless of          the fact that  the [agents]  were acting entirely  for their  own          purposes").  In light  of this apparent conflict, and  since Wang                                                                       ____          did not directly cite  to or overrule New England  Acceptance, we                                                _______________________          also consider it wise to refer this question to the SJC.               In certifying these questions, we wish to make it clear that          we would  welcome any other direction from  the SJC that it deems          useful in resolving these issues.                                        Conclusion                                      __________               For these  reasons, we  affirm the various  fact-findings by          the  district judge and jury and certify  two questions of law to          the Supreme Judicial Court of Massachusetts.                                         -14-                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-2381                               KANSALLIS FINANCE LTD.,                                Plaintiff, Appellant,                                          v.                               DANIEL J. FERN, ET AL.,                                Defendants, Appellees.                                 ____________________          No. 94-1010                               KANSALLIS FINANCE LTD.,                                 Plaintiff, Appellee,                                          v.                               DANIEL J. FERN, ET AL.,                               Defendants, Appellants.                                 ____________________                                    CERTIFICATION                                 ____________________               For  the reasons  discussed  in our  opinion  in this  case,          Kansallis  Finance, Ltd. v. Daniel  J. Fern, Richard C. Anderson,          ________________________    _____________________________________          Robert  J. Donahue, and Charles  M. Sabatt, Nos.  93-2381 and 94-          __________________________________________          1010,  we certify  the following  questions to  the Massachusetts          Supreme Judicial Court:          1.   Under Massachusetts  law,  to find  that  a certain  act  is          within the scope of a partnership for the purpose of applying the          doctrine  of vicarious  liability, must  a plaintiff  show, inter                                                                      _____          alia,  that the act was taken at least in part with the intent to          ____          serve or benefit the partnership?          2.   May  defendants be found  vicariously liable  for authorized          conduct by their  partner that  violated Mass. Gen.  L. ch.  93A,          even  if they were entirely  unaware of and  uninvolved with that          conduct?               In asking these questions, we would, of course, also welcome          any discussion of relevant Massachusetts law the Supreme Judicial          Court deems appropriate.  The Clerk  of the Court is to  forward,          under the  Official Seal  of this  Court, the  Certification, our          opinion, and the briefs and appendix filed by the parties, to the          Massachusetts Supreme Judicial Court.                                             United States Court of Appeals                                             for the First Circuit                                             By:                                                                   _______________                                                  Bruce M. Selya                                                  Circuit Judge                                            -2-
