Gosselin v. Webb

• Decision Date: 04 December 2000
• Docket Number: No. 00-1617,00-1617
• Citation: 242 F.3d 412
• Parties: (1st Cir. 2001) WILLIAM J. GOSSELIN, Plaintiff, Appellant, v. RAYMOND A. WEBB, ARTHUR C. SULLIVAN, JR., WILLIAM N. HURLEY AND MARSHALL L. FIELD, d/b/a FIELD, HURLEY, WEBB & SULLIVAN, Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 412

242 F.3d 412 (1st Cir. 2001)

WILLIAM J. GOSSELIN, Plaintiff, Appellant, v. RAYMOND A. WEBB, ARTHUR C. SULLIVAN, JR., WILLIAM N. HURLEY AND MARSHALL L. FIELD, d/b/a FIELD, HURLEY, WEBB & SULLIVAN, Defendants, Appellees.

No. 00-1617

United States Court of Appeals For the First Circuit

Heard December 4, 2000

Decided March 16, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, U.S. District Judge]

Joseph H. Reinhardt with whom Philip Y. Brown, Danielle R. Menard, Adler, Pollock & Sheehan, P.C., Edwin A. McCabe and The McCabe Group, P.C. were on brief for appellant.

William N. Hurley for appellees.

Before Selya and Stahl, Circuit Judges, and Lisi,^* District Judge.

LISI, District Judge.

In this legal malpractice action, Appellant William Gosselin ("Gosselin") seeks to hold Appellees, a group of attorneys who share office space and practice under the "trade name" Field, Hurley, Webb & Sullivan ("Field, Hurley" or the "firm") vicariously liable for the alleged professional misdeeds of attorney James O'Dea ("O'Dea"). The legal contours of O'Dea's relationship with the firm form the subject matter of this appeal. Gosselin has settled his claims against O'Dea. The district court granted summary judgment in Appellees' favor, Gosselin v. O'Dea, 40 F. Supp. 2d 45 (D. Mass. 1999), and Gosselin appeals from that judgment. Because we find that there exists a genuine issue of material fact as to whether a partnership by estoppel existed between O'Dea and Appellees, we vacate the judgment below.

I. Background

In April of 1992, Gosselin, who had been employed as a second mate on a merchant marine freighter, was discharged by his employer, American President Lines, Inc. ("APL"). Gosselin, through his union, filed a grievance to contest the discharge. On August 12, 1992, an arbitrator conducted a hearing on Gosselin's grievance.

The Gosselins met O'Dea, Mrs. Gosselin's cousin, in October or November 1992, while they were attending the funeral of a family member. O'Dea is an attorney licensed to practice law in Massachusetts and Washington, D.C. After the funeral, the Gosselins and O'Dea discussed Gosselin's case and Gosselin told O'Dea that because of the termination, Gosselin's financial situation had deteriorated badly and he was facing the loss of his home to a possible foreclosure. During the conversation, O'Dea told the Gosselins that he was now "with Field, Hurley, Webb & Sullivan in Lowell [Massachusetts]." O'Dea asked Gosselin to let him know the results of the arbitration.

Shortly after this chance meeting between Gosselin and O'Dea, the arbitrator decided Gosselin's case, reinstating Gosselin to his position with APL with certain conditions imposed. The arbitrator's award, however, did not provide for any payment of back wages.

Before calling O'Dea, and because Gosselin "wanted to make sure that Mr. O'Dea had the backing and support of an established law firm, which could provide him with advice and support," Mrs. Gosselin telephoned her brother, a long-time resident of Chelmsford, Massachusetts (Chelmsford abuts Lowell) to inquire whether he had ever heard of Field, Hurley. Mrs. Gosselin's brother responded that Field, Hurley "was a well-respected law firm in Lowell." Having received this positive report, the Gosselins decided to call O'Dea.

Gosselin contacted O'Dea by phone at his Washington, D.C. office and scheduled an appointment to meet with O'Dea at the Field, Hurley offices on November 24, 1992. In the foyer of the building, O'Dea's name was listed on the directory under the heading "Field, Hurley, Webb, Sullivan Attorneys at Law." O'Dea's name was situated beneath the names of Marshall Field, William Hurley and Arthur Sullivan, Jr. The listing did not indicate that Field, Hurley was not a partnership, nor was there any notation describing O'Dea's relationship with the group or the individual attorneys listed. On their arrival at the Field, Hurley offices, O'Dea introduced the Gosselins to Arthur Sullivan ("Sullivan") and the four exchanged some pleasantries. O'Dea and the Gosselins then went to an office within the Field, Hurley suite where they discussed O'Dea's pursuit of claims against APL for back wages and for damages under the Americans with Disabilities Act ("ADA").

Some time prior to January 2, 1993, Gosselin was again discharged by APL. On that day, Gosselin spoke to O'Dea by phone. The two discussed the lawsuit against APL, and Gosselin agreed to have O'Dea represent him on a contingent fee basis.

During the week of January 13, 1993, at O'Dea's direction, the Gosselins went to the Field, Hurley offices to sign documents necessary for the filing of a petition under Chapter 11 of the United States Bankruptcy Code. O'Dea had previously prepared the documents in Washington, D.C., but, because the Gosselins were residents of New Hampshire, it was necessary that an attorney licensed in New Hampshire file them. O'Dea had called Sullivan seeking his recommendation of a New Hampshire attorney to file the documents. During that conversation, O'Dea asked Sullivan to have the Gosselins come to the Field, Hurley offices to execute the documents. Sullivan agreed. When Mrs. Gosselin came to the Field, Hurley offices she first met with Sullivan's secretary who showed her where to sign the documents. When Mrs. Gosselin indicated to Sullivan's secretary that she had a question regarding the relationship between the filing of the bankruptcy petition and the foreclosure on her home, Sullivan met with her and explained how the bankruptcy filing would stay the foreclosure. Mrs. Gosselin maintains that Sullivan also told her that his office would deliver the documents to the New Hampshire attorney for filing, and that Sullivan knew that O'Dea was working on trying to get back wages and looking into the ADA claim.

During the time that O'Dea was representing Gosselin, Gosselin called Field, Hurley and spoke to Sullivan on one occasion. Gosselin also called Field, Hurley and spoke to a secretary on several occasions "[t]o find out what was going on as far as back wages and ADA claim (sic) and also bankruptcy."

In addition to Sullivan's meeting with Mrs. Gosselin, his notes reflect a phone call with Gosselin on December 26, 1992, "for O'Dea." Several other of Sullivan's notes from January 11-15, 1993, indicate that Sullivan received three to four phone calls from O'Dea regarding Gosselin's case.

Throughout the course of his representation of Gosselin, O'Dea used letterhead with only his name on it when he communicated with Gosselin in writing. However, that letterhead did bear the addresses of both O'Dea's Washington, D.C. office and the Field, Hurley office in Lowell.

On August 26 and 27, 1993, O'Dea represented Gosselin at an arbitration hearing to contest the second discharge. At that time, APL made several settlement offers to Gosselin. The final offer was in the amount of $125,000 in exchange for Gosselin's voluntary termination of employment and a general release. O'Dea and Gosselin discussed the offer and the fact that that sum would not be sufficient to pay all of Gosselin's debts. Gosselin claims that O'Dea advised him to reject the offer "because the A.D.A. suit would be a million dollar law suit." Gosselin rejected the offer.

In November 1993, the arbitrator ruled against Gosselin and in favor of APL. When Gosselin learned that O'Dea had failed to file a timely administrative claim under the ADA and that O'Dea had not filed a claim for back wages, he filed suit against O'Dea and Appellees¹ for legal malpractice in mishandling his claims against APL.

During the pendency of the lawsuit in the district court, Gosselin settled his claim against O'Dea. Field, Hurley, Webb & Sullivan and the individual Appellees filed a motion for summary judgment which the district court granted. Gosselin, 40 F. Supp. 2d at 48. Gosselin appeals from that decision.

II. Standard of Review

"This Court reviews orders for summary judgment de novo, construing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party's favor." Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607, 611 (1st Cir. 2000).² If, after such review, we find that "the evidence . . . reveals a genuine dispute over a material fact--that is, if a reasonable factfinder, examining the evidence and drawing all reasonable inferences in the required manner, could resolve a factual controversy which is critical to the outcome of the case in favor of the nonmoving party--then summary judgment will not lie." Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997).

III. Partnership By Estoppel

We begin our review by noting, as did the district court, that the individual Appellees were not in fact partners in a law firm. They shared office space and certain expenses and practiced under the "trade name Field, Hurley, Webb & Sullivan (collectively "the group")."³ Appellees' Brief at 1. Gosselin, therefore, relies on the doctrine of partnership by estoppel to hold Appellees liable for O'Dea's alleged malpractice. To prevail under this doctrine, a plaintiff must prove four elements: "(1) that the would-be partner has held himself out as a partner; (2) that such holding out was done by the defendant directly or with his consent; (3) that the plaintiff had knowledge of such holding out; and (4) that the plaintiff relied on the ostensible partnership to his prejudice." Atlas Tack Corp. v. DiMasi, 637 N.E.2d 230, 232 (Mass. App. Ct. 1994) (quoting Brown v. Gerstein, 460 N.E.2d 1043, 1052 (Mass. App. Ct. 1984)). Evidence of "holding out" may consist of "words spoken or written or . . . conduct." Mass. Gen. Laws ch. 108A, § 16(1). Thus, a plaintiff may establish the first two elements of his claim by pointing not only to what the putative partners have said, but also to what they did.⁴

The district court found that the evidence mustered by...