
USCA1 Opinion

	




        July 1, 1992            [NOT FOR PUBLICATION]                                 ____________________        No. 91-2338                                    THOMAS J. PYCHE,                                Plaintiff, Appellant,                                          v.                                RICHARD HOWE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Thomas J. Pyche and Sharon L. Pyche on brief pro se.            _______________     _______________            Harvey Weiner, Barry D. Ramsdell, and  Peabody & Arnold, on  brief            _____________  _________________       ________________        for appellee Richard P. Howe.            Thomas E. Sweeney on brief for appellee Brian Barry.            _________________                                 ____________________                                 ____________________                 Per Curiam.  Pro  se plaintiffs Thomas and  Sharon Pyche                 __________            filed  this action  for legal  malpractice and  conspiracy to            commit fraud  against attorneys Richard Howe  and Brian Barry            and  Barry's client  Daniel Desrochers.   The  district court            entered summary judgment for  attorney Howe and dismissed the            claims against  the remaining defendants with  prejudice.  We            affirm.                 This  case  arose  from  defendant  Desrochers'  alleged            breach of  an agreement with plaintiff Thomas Pyche (Pyche).             On July 9, 1986, Pyche sold Desrochers a duplex home at 124 D            Street   in  Lowell,  Massachusetts  for  $105,000,  a  price            allegedly  below the  property's fair  market value.1   Under            the  terms of  their  agreement, Desrochers  agreed to  allow            Pyche's elderly parents to continue to reside at the property            and to  participate in  the federally subsidized  "Section 8"            rental assistance program.   Desrochers agreed to comply with            any Section 8 requirements.  Pyche agreed to pay his parents'            share  of the  $350 monthly  rent.   Implicit in  this poorly            drafted  agreement  is  the  assumption that  the  Section  8            program would pay the balance of  Pyche's parents' rent.  The            agreement also  gave Pyche  a right  of first  refusal should            Desrochers wish  to sell  the property while  Pyche's parents            were still living there.                                             ____________________            1.  The property is also described as 146 Warwick Street.                                         -2-                 Pyche paid his parents'  rent for July and  August 1986.            Thereafter, for  reasons that  are not clear,  the deal  went            sour.2   Desrochers  instituted eviction  proceedings against            Pyche's  parents in  Lowell district  court.   Attorney Barry            represented  Desrochers in  these proceedings.    The summary            process  complaint alleged  that  Pyche's  parents were  five            months in arrears in their rent.  Pyche engaged attorney Howe            to  represent his parents  in the eviction  proceeding and to            institute  a  separate  breach  of  contract  action  against            Desrochers on Pyche's own behalf.                         To cut to the chase, the eviction proceeding resulted in            a judgment  for Desrochers.   Attorney Howe filed  a separate            action against  Desrochers on Pyche's behalf.   The complaint            in this breach of contract action alleged that Pyche sold the            property to  Desrochers for substantially less  than its fair            market value  in return for Desrochers'  promise that Pyche's            parents could live there as long as  they desired and that he            (Desrochers)   would  help  them  secure  Section  8  housing            assistance.   Desrochers allegedly breached this agreement by            failing to help Pyche's parents secure Section 8 payments and            by evicting  Pyche's parents.  Pyche  claimed $50,000 damages            for Desrochers' unjust enrichment.                                              ____________________            2.  Pyche says  that Desrochers refused to  sign certain rent            receipts  to  enable  Pyche's  parents to  obtain  Section  8            payments.  Desrochers claimed that Pyche asked him to falsify            the  rent receipts to  reflect that Pyche's  parents paid the            rent when, in fact, Pyche was paying the rent.                                          -3-                 After this  breach of  contract action had  been pending            before  the Middlesex  superior court  for almost  two years,            Pyche  instructed attorney  Howe either  to move  for summary            judgment or withdraw.  Attorney Howe was allowed to  withdraw            by a May 3, 1989 court order.  Pyche represented himself in a            bench  trial.   On  September 21,  1989,  the superior  court            issued a decision in favor of Desrochers.  The superior court            specifically  found  that   Desrochers  instituted   eviction            proceedings after the Pyches  were five months in arrears  on            their rent and  that Pyche  failed to  prove that  Desrochers            interfered  with  the  normal  processing of  the  section  8            application Pyche's  parents had filed.   The court concluded            that "[t]he  evidence is insufficient to  warrant any finding            that  the defendant  breached either  provision of  the sales            agreement with respect to Pyche's parents."  Judgment entered            for Desrochers on October 2, 1989.                  The Pyches filed the  instant federal action in November            1990.    Their  complaint  alleged that  the  defendants  had            "engag[ed] in acts of conspiracy, fraud,  misuse of the legal            process, collusion, legal malpractice, obstruction of justice            and racketeering."  The Pyches specifically claimed that Howe            lost  the  eviction proceeding  unnecessarily  and  failed to            place  a   lien   on  the   property  (thereby   facilitating            Desrochers'  resale).    Pyche  reiterated  his  claim   that            Desrochers   breached  their   agreement  and   alleged  that                                         -4-            Desrochers and  attorney Barry filed a  fraudulent motion for            summary  judgment in the  eviction case.   The complaint also            alleged that Barry failed to  respond to Pyche's questions in            the summer of 1986 (when Pyche and Desrochers were  disputing            the propriety of section 8 receipts).   Both  the Pyches  and            Howe  filed motions  for  summary judgment.   Barry  moved to            dismiss  under Fed.  R. Civ.  P. 12  (b)(6).   Desrochers was            never served with the complaint as he  apparently left Lowell            for  parts  unknown.   In  a  series  of  margin orders,  the            district  court  (1)  allowed  Howe's  motions  for   summary            judgment  on  the claims  of  Thomas  and  Sharon Pyche,  (2)            allowed  Barry's  motion  to  dismiss,  and  (3)  sua  sponte                                                              ___  ______            dismissed the complaint against Desrochers.  The Pyches filed            numerous post-judgment  motions and  a petition  for mandamus            which resulted in this appeal.3                   Apart from the conclusory allegations of  fraud, Pyche's            claim  against Howe essentially  boils down  to one  of legal            malpractice.   The district  court allowed Howe's  motion for            summary  judgment  on  the  grounds  that  the  Massachusetts                                            ____________________            3.  In resolving  the  Pyches' petition  for  mandamus,  this            court ordered that  Pyche's "Notice of  Intention to File  an            Appeal" be treated as a notice  of appeal.  Howe has moved to            dismiss  Sharon Pyche's appeal on the ground that she did not            sign  this notice, even though  she is named  in the caption.            The district court granted Howe's motion for summary judgment            on Sharon Pyche's claim on the ground that he did not have an            attorney-client  relationship  with  her.    As   the  record            supports this, we elect  to affirm this ruling on  its merits            and thus  need  not decide  the  jurisdictional issue.    See                                                                      ___            Norton v. Mathews, 427 U.S. 524, 530-32 (1976).            ______    _______                                         -5-            superior  court's judgment  for Desrochers  in the  breach of            contract action collaterally estopped Pyche from relitigating            issues related  to the  eviction.  Consequently,  Pyche could            not  prevail   in  his  malpractice  claim   because  he  was            collaterally  estopped   from  proving  that  he  would  have            recovered on his underlying claim against Desrochers.                   This ruling was correct.   Under Massachusetts law, "[a]            client in  a  malpractice action  based on  an allegation  of            attorney negligence  must show  that, but for  the attorney's            failure, the  client probably  would have been  successful in            the  prosecution  of  the   litigation  giving  rise  to  the            malpractice  claim."    Colucci v.  Rosen,  Goldberg, Slavet,                                    _______     _________________________            Levenson & Wekstein, P.C., 25 Mass. App. Ct. 107, 111 (1987).            _________________________            Pyche  contends  that but  for  Howe's  negligent failure  to            attach the property and  assert Desrochers' alleged breach of            contract as  a counterclaim  in the eviction  proceeding, his            parents would not have been evicted, and Pyche would not have            lost  his  claim to  the property.    But the  superior court            decided  that Desrochers  did not  breach his  agreement with            Pyche  by evicting Pyche's parents.4  This finding is binding            and entitled  to preclusive effect  in this proceeding.   See                                                                      ___                                            ____________________            4.  We think  this finding is apparent both from the language            of  the court's  decision  (finding that  Desrochers did  not            breach "either  provision" of the sales  agreement, i.e., the            section 8 provision, and the provision concerning the term of            the  tenancy)  and  the  transcript  of  the  trial  in  this            proceeding.                                         -6-            Martin v.  Ring, 401 Mass.  59, 61-62  (1987).   As Pyche  is            ______     ____            foreclosed  from  proving  that  Desrochers   breached  their            agreement by evicting Pyche's  parents,  Pyche cannot prevail            on his claim that attorney Howe negligently failed to  assert            this  breach in  the eviction  proceeding.   Accordingly, the            judgment for attorney Howe must be affirmed.                 Pyche's remaining claim asks  that this court find fraud            from the fact that  Pyche was not successful in  his previous            action   against  Desrochers.     The  complaint  was  wholly            insufficient to state a viable fraud claim against any of the            defendants.  Pyche's  motions to amend his complaint  did not            cure these defects.  Pyche remains collaterally estopped from            relitigating his claim against Desrochers.                      Having reviewed the entire  record, we discern no error.            Accordingly,   the   judgment  of   the  district   court  is            affirmed.5              _________                                            ____________________            5.  This moots Howe's  motions to strike the  addendum to the            Pyches' reply  brief and  the transcript of  Pyche's superior            court  trial.    We accepted  the latter under  E.I Dupont De                                                            _____________            Nemours  &  Co., Inc.  v. Cullen,  791  F.2d 5,  7  (1st Cir.            _____________________     ______            1986)(federal courts may take  notice of proceedings in other            courts if those proceedings have a direct relation to matters            at  issue).  The transcript  indicates that Pyche  had a full            and  fair   opportunity  to  litigate   his  claims   against            Desrochers.                                         -7-                                                     -8-
