
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                           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 E.             ________________            ______________________     __________        Ryckman, Jr. were on brief for appellants.        ____________             Hilary B. Miller for appellees.             ________________                                                                                      ____________________                                    August 1, 1996                                                                                      ____________________                    CYR,  Circuit Judge.  Following our remand for findings                    CYR,  Circuit Judge.                          _____________          of fact and conclusions of law, see Francis v. Goodman, 81 F.3d 5                                          ___ _______    _______          (1st  Cir.  1996),   the  district  court  found  that  Rose  had          established  the  predicate for  diversity jurisdiction  under 28          U.S.C.    1332(a)(1) (1994),  id. at 6-7.   As  its determination                                        ___          that  Rose intended  to  remain  a New  York  domiciliary is  not          clearly  erroneous, Lundquist v. Precision Valley Aviation, Inc.,                              _________    _______________________________          946  F.2d 8, 11  (1st Cir.  1991), we  affirm the  district court          judgment.                     The district  court considered the  appropriate factors          in determining  Rose's domiciliary intent.   See Bank  One, Tex.,                                                       ___ ________________          N.A.  v.  Montle,  964  F.2d  48, 50  (1st  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  id. (voter  registration a                                            ___  ___          "weighty" factor).   The district court thus  possessed diversity          jurisdiction.   See Anderson v.  City of Bessemer City,  470 U.S.                          ___ ________     _____________________          564, 574  (1985) ("Where there  are two permissible views  of the          evidence,  the factfinder's choice between them cannot be clearly          erroneous.").                      In 1984,  Francis and  her son  inherited a  commercial          property on Main  Street, Nantucket.  She met Rose in August 1985                                          2          and an intimate relationship developed.  Rose obtained a Benetton          clothing  franchise in  late  1985, and  asked Francis  if Rose's          company, Nanben  Corporation ("Nanben"),  could operate  a retail          store at Francis' Main Street location.  Individually represented          by retained  counsel, the parties  negotiated and entered  into a          lease on March  6, 1986.  During this  time, Francis began living          with Rose.  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:  "You owe me a lot of money here,          and  I  want to  do something.    Should I  do something?"   Rose          responded, "No,  you don't have to do anything.   Trust me.  Just          have patience.   You will get paid."   Despite similar assurances          from  Rose,  Nanben  continued to  lag  behind  in rent  payments          through April 1991.                      In  late June  1991, Francis  and  Rose stopped  living          together but remained  friends.  Rose  had handled various  legal          matters  for Francis during  their intimate relationship,  but in          June 1992 Francis again consulted the attorney who had negotiated          the  store  lease, and  decided  to initiate  a  summary eviction          action against  Nanben.   Nanben  promptly sought  refuge in  the          bankruptcy  court,  and  although  Francis  eventually   regained          possession  of the  store, she  was unable  to collect  a $92,898          judgment  for  unpaid  rent and  costs,  which  precipitated this          diversity  action charging Rose  with malpractice for  failing to                                          3          advise Francis to seek  independent representation regarding  the          unpaid store rent.                                          4                    The  action  was  tried   before  the  district   court          (Lindsay, J.), without a jury.   Following the case in chief, the          district  court ruled  that  Francis  had  never  established  an          attorney-client  relationship  with  Rose.    The  court  entered          judgment for Rose under Fed. R. Civ. P. 52(c) ("If during a trial          without a jury a party  has been fully heard on an issue  and the          court finds against the  party on that issue, the court may enter          judgment as a  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  law governs  the Francis          malpractice claim.   See  One Nat'l Bank  v. Antonellis,  80 F.3d                               ___  ______________     __________          606, 608  (1st Cir. 1996) (court ordinarily applies governing law          agreed upon by parties).  As a  general rule, an  attorney cannot          be found liable  for malpractice absent a  breach of duty to  the          client.  DeVaux v. American Home Assur. Co., 444 N.E.2d 355,  357                   ______    ________________________          (Mass. 1983).   Nor is  it sufficient to  show that an  attorney-          client  relationship existed as  to an unrelated  matter; rather,          the  plaintiff  must  prove that  the  relationship  existed with          respect to  the act  or omission  which forms  the basis  for the          malpractice claim.    Symmons v.  O'Keeffe, 644  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,                                          5          an attorney-client relationship may be implied when "(1) a person                                                 _______          seeks advice  or assistance from  an attorney, (2) the  advice or          assistance  sought  pertains  to matters  within  the  attorney's          professional  competence,  and  (3)  the  attorney  expressly  or                                     ___       ___  ________          impliedly agrees to give or  actually gives the desired advice or          _________ ______ __ ____ __  ________ _____ ___ _______ ______ __          assistance."     DeVaux,  444  N.E.2d  at  357  (emphasis  added)          __________       ______          (quotation omitted).  In appropriate cases, the third element may          be  established  by  proving  that the  attorney  knew  that  the          plaintiff  reasonably relied  on the  attorney  to provide  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  clear error.  Francis never  told Rose that          she wanted legal  advice with respect to the store  rent, nor did          Rose bill her  for such legal advice.  See Symmons, 644 N.E.2d at                                                 ___ _______          639.  At trial, Francis conceded that Rose was merely a tenant at          the time she spoke with him concerning the unpaid store rent.  On          the  other hand,  she testified  that  she thought  Rose was  her                                                     _______          attorney when she asked him during the same conversation  whether          she  should  "do  something"  about  the store  rent.    But  see                                                                   ___  ___          Sheinkopf, 927  F.2d at  1265 (requiring  more than  "subjective,          _________          unspoken  belief" that  person  is  acting  in  legal  capacity).                                        ____________________               1Whether an attorney-client relationship exists presents  an          issue  of fact  under Massachusetts  law.   Page v.  Frazier, 445                                                      ____     _______          N.E.2d 148, 152  (Mass. 1983).   Thus,  Francis must  demonstrate          clear  error in  the district  court  finding that  there was  no          attorney-client  relationship.  See  Fed. R. Civ.  P. 52 advisory                                          ___          committee's  note to  1991  Amendment  (mandating  "clear  error"          review of  factual findings);   Atlantic Track  & Turnout  Co. v.                                          ______________________________          Perini Corp., 989 F.2d 541, 543 (1st Cir. 1993) (same).            ____________                                          6          Moreover, Francis testified:  "I believed that [Rose]  would give          me good advice since we were an item."                      On this  record, we  cannot disturb  the well-supported          district  court finding  that Rose  had  no reason  to know  that          Francis  was seeking  legal advice  from  him, as  opposed to  an          appraisal of his company's  financial ability, as her  tenant, to          pay the store rent, and that the trust Francis placed in Rose was          due, in  large part, to  their intimate relationship.   Thus, the          district  court correctly concluded that the failure to establish          an  attorney-client relationship with  respect to the  store rent          foreclosed Francis' malpractice  claim.  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.                    __________                                          7
