NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-919                                               Appeals Court

    MARIE D. BRISSETTE      vs.   EDWARD J. RYAN, JR., & another.1


                              No. 14-P-919.

         Hampden.        December 8, 2014. - October 29, 2015.

              Present:    Rubin, Milkey, & Sullivan, JJ.


Practice, Civil, Judgment notwithstanding verdict. Negligence,
     Attorney at law. Attorney at law, Malpractice. Real
     Property, Life estate.


     Civil action commenced in the Superior Court Department on
September 7, 2010.

     The case was tried before Edward J. McDonough, Jr., J., and
a motion for judgment notwithstanding the verdict was heard by
him.


     Roger J. Brunelle for the plaintiff.
     Richard L. Neumeier for the defendants.


     RUBIN, J.      After a Superior Court trial in this legal

malpractice case, a jury found that the primary defendant,

Edward J. Ryan, Jr., was negligent in his representation of the

plaintiff, Marie D. Brissette, and awarded damages to her in the

     1
       The law firm of Ryan, Boudreau, Randall, Kirkpatrick &
Baker, LLP.
                                                                      2


amount of $100,000 against Ryan and his law firm, Ryan,

Boudreau, Randall, Kirkpatrick & Baker, LLP (law firm)

(collectively, defendants).2    The defendants filed a motion for

judgment notwithstanding the verdict (n.o.v.) which was allowed

by the trial judge, who ordered judgment to enter for the

defendants.   Marie3 has appealed.   We reverse, and order

reinstatement of the verdict in favor of Marie.

     1.   Facts.   Viewing the evidence in the light most

favorable to Marie, the jury could have found the following

facts.    See Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass.

91, 94 n.5 (2009).     In 1994, Marie and her husband Robert

(collectively, Brissettes), consulted Ryan for advice about how

to protect their home in South Hadley from Medicaid4 liens in the

event that either needed long-term care.     Ryan advised them that

they could transfer the title to their property to their four

adult children with reserved life estates to protect themselves

from Medicaid liens.    He advised them that transferring title


     2
       The parties stipulated that the law firm, the limited
liability partnership at which Ryan was practicing at the time
of the alleged malpractice, was vicariously liable for any
negligence on Ryan's part.
     3
       Because several parties share the same surname, we use
their first names to avoid confusion.
     4
       At trial, and in this opinion, the references to the rules
and regulations of the Federal Medicaid program incorporate the
rules and regulations of MassHealth, the State-provided health
insurance program.
                                                                     3


for less than adequate consideration would have a negative

impact on them if they applied for Medicaid within three years.

The Brissettes followed this advice, transferring the property

to their children and reserving life estates for themselves.

Their children signed a deed transferring the house back to

them, which Ryan held in escrow, to be kept there until the

Brissettes wanted to sell the South Hadley house.

    Thirteen years later, in July of 2007, the Brissettes and

two of their four children, Paul Brissette and Cynthia

Parenteau, met at Ryan's office to discuss the Brissettes'

desires to sell the South Hadley home and to buy property

located in Springfield.   They discussed the prospect of putting

the Springfield property in the names of Paul and Cynthia.    Ryan

told the Brissettes that if they reserved life estates in the

Springfield property, they could be ineligible for Medicaid if

they applied any time within five years of getting the life

estates.   He also told them that if they took life estates in

the Springfield property, there could be a Medicaid lien against

that property when they died.   There was evidence that the

Brissettes asked about "protection," but Ryan told them that he

did not feel that the Brissettes needed protection because they

could trust their children to do what they wanted them to do.

In reliance on Ryan's advice, the Brissettes decided that the

Springfield property would be bought with their money but put in
                                                                     4


Paul's and Cynthia's names, and that the Brissettes would not

have life estates in the Springfield house.

    The jury could have found, as Ryan conceded at trial, that

Ryan's advice was wrong both about ineligibility for Medicaid

and about the possibility of a posthumous Medicaid lien against

the property had the Brissettes reserved life estates in the

Springfield property.    An expert witness testified that not only

was Ryan's advice wrong, but that it was below the standard of

care applicable to the average qualified attorney advising

clients on Medicaid planning.    The jury also could have found

based on the expert's testimony that it would have been possible

to structure the transaction using a testamentary power of

appointment which would have given the Brissettes the right to

change the remaindermen and which would have provided them with

leverage over Paul and Cynthia.    We express no opinion on the

merits of the advice given by Ryan, which is not at issue in

this appeal, nor on the merits of the expert's proffered advice

on Medicaid planning.    There was evidence both in the form of

concessions by Ryan and in the form of expert testimony that his

advice was wrong.

    Paul took out a loan on his own house to finance the

purchase of the Springfield house; the Springfield house deed

was taken in Paul's and Cynthia's names as joint tenants on

August 14, 2007.    Ryan released the deed that transferred the
                                                                       5


South Hadley property back to the Brissettes.     The Brissettes

then sold the South Hadley home, and on September 14, 2007, used

the proceeds to reimburse Paul (with interest) for his purchase

of the Springfield house in the amount of $193,476.    Due to

Ryan's advice, the Brissettes did not take out life estates,

receiving, in Marie's words, "absolutely nothing" in return for

$193,000 (without the interest).

    The next year, Robert passed away.      Marie concluded that

she wished to own the Springfield house in her own name.        Paul

and Cynthia declined to transfer the house to Marie.

    Marie, of course, does not have a life estate in the

Springfield property.   In 2010, Cynthia transferred her interest

in the property to a revocable trust of which she was the

trustee.   The trust contains a provision stating, "Marie D.

Brissette shall have the opportunity to reside in the subject

premises owned by this Trust for as long as she so desires."        It

also provides that "[i]n the event that Marie D. Brissette

should choose to no longer reside in the subject premises, and

the premises are sold, then the Trustee shall not be required to

provide distributions to Marie D. Brissette."     The trustee,

however, may amend the trust at any time.

    As to Paul, although he declined to transfer his interest

to Marie, sometime in June of 2013 he executed a series of

documents the benefit of which he offered to Marie.     These
                                                                   6


documents purported to offer her the right to live in the house

but not the right to sell, lease, or mortgage it for interest,

and the documents also provided that her rights would be

forfeited if she failed to live in the house for three

consecutive months, or for 180 days in any calendar year.      A

life estate, of course, includes far more than what Paul

offered, which was essentially a conditional right to live on

the premises.5

     At trial, Marie's theory of damages was that, but for

Ryan's negligence, she would have obtained a life estate for the

$193,000 that she and Robert paid to Paul.   Instead of a life

estate, she argued, she had no legally cognizable interest,

which subjected her to the risk of being forced to move out of

the house by Paul and Cynthia, or by anyone who succeeded their

interests, such as a judgment creditor or a buyer.   Unlike one

with a life estate, Marie did not have the ability to rent the

house, or to apply for an equity loan.   Finally, she argued

that, although she would have been able to do so if she held a

life estate, she had no power to change the disposition of the

     5
       "The owner of a possessory life estate, i.e., the life
tenant, has a right to the exclusive possession of the land.
And if a remainder interest has been created, during the
existence of the life estate the remainderman is not entitled to
possession until the death of the life tenant. A life estate is
alienable by the life tenant, and he can accordingly convey his
estate to a third person, or mortgage it, or lease it for a term
of years." Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 88
n.20 (2008) (citations omitted).
                                                                  7


Springfield house when she died.    The jury found Ryan6 liable and

set damages at $100,000.

    2.    Judgment n.o.v. motion.   The defendants moved for

judgment n.o.v., arguing that Ryan's negligence did not cause

Marie any actionable harm.   The judge agreed, concluding that

Marie had submitted "no proof of actual damages" as a result of

Ryan's negligence.   The judge noted that Paul and Cynthia both

testified that each never would evict Marie, which, the judge

reasoned, "estops both from taking the opposite position in a

later legal proceeding," a question we need not decide.    The

judge noted that while the jury could have found that Marie's

residency at the property was subject to certain terms, she has

not "provided any evidence tending to show that she intends to

violate those terms."   The judge concluded that Marie, still

living in the house, had not proved "actual damages," but that

she had "merely proven 'negligence in the abstract,'" citing

International Mobiles Corp. v. Corroon & Black/Fairfield &

Ellis, Inc., 29 Mass. App. Ct. 215, 217 (1990).    The judge

concluded that "a loss of rights" requires additional proof of

actual damages, and that Marie's unease that Paul and Cynthia

might someday seek to evict her amounted only to "emotional

distress damages" that, the jury were instructed without



    6
        The law firm was liable as well.   See note 2.
                                                                      8


objection, were not recoverable for legal malpractice in the

circumstances of this case.7

     3.   Discussion.   "Judgment notwithstanding the verdict is

to be granted cautiously and sparingly."     Matley v. Minkoff, 68

Mass. App. Ct. 48, 52 (2007).    In evaluating a defendant's

motion for judgment n.o.v., "we consider 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."     Haddad, 455 Mass. at

94 n.5 (citations omitted).     The judge concluded, and the

defendants argue here, that Marie did not suffer the

"appreciable harm" that triggers the accrual of a cause of

action for legal malpractice.    Cantu v. St. Paul Cos., 401 Mass.

53, 57 (1987).   What is required is "injury, loss or detriment

that is capable of being measured or perceived."     Kennedy v.

Goffstein, 62 Mass. App. Ct. 230, 233 (2004) (citation omitted).

     Here, the jury were entitled to conclude that as a

proximate and reasonably foreseeable result of Ryan's

negligence, Marie failed to obtain a valuable property right she

otherwise would have:    a life estate in the Springfield house.

Deprivation of such a property right is actual damage that is

cognizable in a tort action such as this.    The value of a

     7
       The availability of emotional distress damages in this
case is something we need not address and do not decide in light
of our disposition.
                                                                     9


property right lies in, among other things, the rights it gives

one to possession and to free alienation of the property.

Deprivation of those rights is, under our legal system, an

archetypal injury in fact.   See, e.g., Blood v. Nashua & Lowell

R.R. Corp., 2 Gray 137, 139-140 (1854) (Shaw, C.J.) (tortious

interference with right incident to property ownership amounts

to legally cognizable injury); Commissioner of Pub. Health v.

Bessie M. Burke Memorial Hosp., 366 Mass. 734, 743 (1975)

(Kaplan, J.) ("diminish[ing] or defeat[ing] an existing property

interest" does an individual "injury").   Our Supreme Judicial

Court opined more than 160 years ago that "the conversion or

tortious taking" of an individual's stock certificate was

actionable.   Smith v. Hurd, 12 Met. 371, 386 (1847).    In that

circumstance, the individual need not wait until he or she would

have sold the stock to demonstrate damage.   Ibid.    The property

interest in the certificate has value, and its deprivation works

"injury."   Ibid.

    So it is with the life estate in this case.      It is no

answer to Marie's claim against Ryan that but for his negligence

she would have a life estate to say that it does not matter

because her children allow her to live in the house at their

sufferance.   The latter fact may be a question to submit to the

jury that must determine the value of the lost life estate.        But

the fact that because of Ryan's negligence she has no right to
                                                                    10


alienate the property during her lifetime by, for example,

renting or mortgaging it, means that she did not obtain

something of value that she otherwise would have.   She is

damaged by that loss and should properly be compensated for it,

even without proof that she had present plans to exercise her

right to alienation.

     This is thus not a case in which Ryan committed only

"negligence in the abstract," because no harm yet has accrued to

Marie.   International Mobiles Corp., 29 Mass. App. Ct. at 217.

When a tortious act prevents someone from obtaining a valuable

life estate, that individual has suffered damage and a

cognizable injury for which she is entitled to redress.8     That

suffices to resolve this case.9


     8
       The defendants argue in the alternative that Marie failed
to mitigate completely her damages by taking Paul's offer, as
described in the text, supra. We disagree. The offer contained
restrictions that rendered it less than equal to a life estate.
     9
       Although the decision below might be read to rest in the
alternative on the ground that the amount of damages was
speculative, we do not address the issue. The defendants have
not raised any argument before us that the amount of damages was
speculative, and therefore that argument is waived. See
Commonwealth v. Swartz, 454 Mass. 330, 336 n.5 (2009)
(alternative ground for affirmance not argued before appellate
court deemed waived); U.S. Bank Natl. Assn. v. Schumacher, 467
Mass. 421, 426 n.10 (2014) (potentially dispositive issue not
raised in party's appellate brief deemed waived), citing
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See
also Travenol Labs., Inc. v. Zotal, Ltd., 394 Mass. 95, 97
(1985). Furthermore, the defendants did not make any argument
about the amount of damages in their motion for a directed
verdict, and thus, to the extent the judge did rely on any such
                                                               11


    The order granting judgment n.o.v. is reversed, and the

jury's verdict awarding damages to Marie is reinstated.

Judgment is to enter for Marie consistent with the jury verdict.

                                   So ordered.




argument, it was an improper ground for granting judgment n.o.v.
Matley, 68 Mass. App. Ct. at 52 (reversing where "the basis upon
which the defendant's motion for a judgment n.o.v. was allowed
was not asserted in the motion for a directed verdict"). See
Shafir v. Steele, 431 Mass. 365, 371 (2000) ("[A] party may not
raise an issue in a motion for judgment n.o.v. that was not
raised in a motion for directed verdict"). See also
Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1402 (1998) (party
moving for judgment n.o.v. does so "in accordance with [its]
motion for a directed verdict"). Requiring the asserted ground
for judgment n.o.v. to be included in a motion for directed
verdict ensures a plaintiff "an opportunity to seek leave from
the court" to "rectify any deficiencies in its case." Matley,
supra, quoting from Bonofiglio v. Commercial Union Ins. Co., 411
Mass. 31, 35 (1991). This rule prevents plaintiffs from being
"ambushed" by a defendant's new argument after the time for
submitting additional evidence to the jury is finished. Id. at
53.
