USCA1 Opinion

September 27, 1995

United States Court of Appeals

For the First Circuit

_____________________________

No. 95-1023

FLANDERS & MEDEIROS, INC.,

Plaintiff, Appellee,

v.

ELIZABETH V. BOGOSIAN,

Defendant, Appellant.

_____________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

_____________________________

Before

Torruella, Chief Judge,

___________
Stahl, Circuit Judge,
_____________
and Dominguez, * District Judge.
______________

_____________________________

ERRATA SHEET
ERRATA SHEET

Please make the following correction:

Page 2, line 5 from bottom of page:

Delete "Woloohojian (now deceased) and Harry

Woloohojian."

Insert "Woloohojian and Harry Woloohojian (now

deceased)."

_______________________________

*Of the District of Puerto Rico, sitting by designation.

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 95-1023

FLANDERS & MEDEIROS, INC.,

Plaintiff, Appellee,

v.

ELIZABETH V. BOGOSIAN,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Stahl, Circuit Judge,
_____________
and Dominguez,* District Judge.
______________

____________________

Keven A. McKenna with whom Bruce Hodge was on brief for

________________
___________
appellant.
Matthew F. Medeiros and Erik Lund with whom Robert Karmen,
___________________
_________
_____________

Flanders & Medeiros Inc., Cynthia C. Smith, and Posternak, Blankste

________________________ ________________
___________________
& Lund were on brief for appellee.
______

____________________
September 13, 1995
____________________

_____________________
*Of the District of Puerto Rico, sitting by designation.

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________

This case arises from the

representation of defendant-appellant Elizabeth Bogosian

("Bogosian") by plaintiff-appellee Flanders & Medeiros

("F&M") in hotly contested litigation involving family real-

estate partnerships.

After Bogosian failed to endorse over

to F&M checks made payable to Bogosian by the defendant in

the underlying litigation and delivered to F&M as her

counsel, F&M sued Bogosian for breach of contract.

Bogosian

counterclaimed for malpractice and breach of the attorney-

client contract.

The district court awarded summary judgment

to F&M on all claims.

We now reverse the award of summary

judgment on F&M's breach-of-contract claim, and affirm the

district court's ruling on Bogosian's counterclaims.

I.
I.
__

In

November

1989,

following

the

withdrawal

of

Bogosian's prior counsel from the underlying litigation, F&M,

Providence,

Rhode

representation

Island,

of Bogosian,

ongoing lawsuits

law

firm,

citizen of

stemming from

took

over

the

Florida, in

the

her involvement in

a family

real estate empire created by her and her two brothers, James

H.

Woloohojian

and

Harry

Woloohojian

Bogosian had few liquid assets at

her lawyers

result of

November

but stood

her lawsuits.

24,

1989 (the

to receive

In

deceased).

the time from which to pay

substantial amounts

a letter sent

"November

(now

24

as a

to Bogosian

letter"), and

on

which

-22

Bogosian then signed indicating her

the terms of

$25,000

its representation.

retainer

from

Bogosian,

interest-bearing account; it would

at

agreement, F&M explained

The firm

to

be

would obtain

deposited

in

an

bill Bogosian each month

its lawyers' hourly rates, with each bill due and payable

within ten days after receipt; and interest would

a local

bank's prime

days or more.

We

rate) on

accrue (at

bills outstanding for

The letter further stated:

recognize that you

may be

pay our monthly statements

ongoing basis.

unable to

in full on an

To the extent that you

________________________

are unable to pay those bills from other

_________________________________________
sources, you have agreed to apply your
_________________________________________
first proceeds out
of the
E &
J
_________________________________________
receivership,
the Woloohojian
Realty
_________________________________________
Associates
receivership
and/or
the
_________________________________________
federal

court

litigation,[1

] until all
_________________________________________
of our outstanding bills, including any
_________________________________________
accrued interest, are paid
in full.
_________________________________________
Appended to this

letter as Exhibit

an Assignment that
execute.

That

we would

ask you

assignment gives

interest in the

proceeds of those

proceedings

to

up

the

A is

amount

us

to
an

court
of

our

sixty

bills.

It is my

understanding that you

____________________

1.

The

"E &

receivership" and

Associates receivership" are

two

family real

litigation"

estate

(or

the "Woloohojian

state court actions

partnerships.

"valuation"

Realty

concerning

The "federal

litigation)

was

court

brought

by

Bogosian in the United States District Court for the District

of

Rhode Island

Realty

to

dissolve the

Corporation

corporations

law.

("WRC"),
See R.I.
___

Bogosian filed her lawsuit,

family-owned

pursuant

to

Gen. Laws

Woloohojian
Rhode

Island

7-1.1-90.

After

WRC exercised its option to

buy

out Bogosian's one-third share of the corporation rather than

face dissolution.
as its

findings

Bogosian's

WRC

In April 1995,
the
stock

report
at

of a

the district court adopted

special

$4,901,801.

master
See
___

Bogosian
________

Woloohojian, 882 F. Supp. 258, 261, 266 (D.R.I. 1995).

___________

-33

valuing
v.

have

reviewed

this

agreement with

Ted

Pliakas[2] and have found it acceptable.

(emphasis added).

The referenced assignment (the "assignment

document") included the following language:

1.

Assignee

has agreed

Assignor in said actions at

set

forth in a

letter from

to

represent

hourly rates
Assignee to

Assignor dated November 24, 1989.

2.

Assignor anticipates that she will

____________________________________

receive substantial sums in said actions

_________________________________________
(the "Recoveries"), out of which she
_________________________________________

expects and agrees to pay the legal fees

_________________________________________
and out-of-pocket expenses payable to
_________________________________________
Assignee.
_________

3.

To the extent that Assignor owes

____________________________________

Assignee any
money for out-of-pocket
_________________________________________
expenses and legal services rendered by
_________________________________________
Assignee in connection with said actions,
_________________________________________
Assignor hereby
assigns to Assignee,
_________________________________________
effective as of the day and year first
_________________________________________
above written, that
portion of
the
_________________________________________
Recoveries which is necessary to pay all
_________________________________________
of Assignee's then unpaid bills.
___________________________________
remainder

of

the

Recoveries

shall

The
be

payable to Assignor.

4.

In the event that there is a recovery

in fewer

than all of

Assignee

is paid

said actions,

in full,

later incurs additional legal

Assignee which is

and

and Assignor
expense to

not paid on a

current

basis,

Assignee

additional

shall

legal

be

paid

expense

additional amounts, if any,

out

such
of

recovered by

Assignor in the remaining actions.

5.

Nothing

construed

contained herein

so as

payment

of

its

amounts

recovered

to

limit

be

Assignee

to

legal

expenses

from

by

Assignor in

said

actions.

____________________

2.

shall

Bogosian's personal attorney.

-44

(emphasis added).

filed an

the

Both parties

signed the

appropriate financing statement with

Secretary of

State, asserting

document.

F&M

the office of

F&M's rights

as secured

party to "[a]ll of Debtor's rights to the recoveries received

by Debtor arising from" Bogosian's various lawsuits.

F&M

represented

Bogosian

pursuant to

the

above

terms in at least ten different matters between late 1989 and

the

end of 1992,

with the bulk

valuation litigation.

that case ordered

mortgage

In July

WRC (1)

of its time

devoted to the

1990, the district

to grant Bogosian

a $10

court in

million

on one of WRC's properties as security to guarantee

eventual payment

of her

been determined,

and (2)

distribution" payments

per

shares' value

once that

to provide Bogosian

of an

month, to continue until

with "interim

initial $100,000

the entry of

value had

plus $10,000

a final judgment

determining the fair value of her shares.3

On December

23,

1992, without

-- so

far as

the

record shows -- any solicitation from either Bogosian or F&M,

WRC delivered two

checks to F&M

made payable to

Bogosian.4

these payments,

presumably

____________________

3.

F&M

asserted

no

claim

to

because it had argued to the district court that the payments

were necessary
and

for Bogosian to meet

demands of other

court's

order, and

creditors.
we

affirmed.

her day-to-day expenses

WRC

appealed the district

Bogosian v.
________

Woloohojian
___________

Realty Corp., 923 F.2d 898 (1st Cir. 1991).

____________

4.

The voluntary payment

followed on

the heels

of a

jury

verdict in
lawsuit
excess of

Bogosian's favor

initiated by
$20 million

in a Massachusetts

WRC, in

which

state court

WRC sought

for Bogosian's alleged

damages in

usurpation of

-55

The checks, one for $900,000 and the other for $100,000, were

accompanied by a letter stating the following:

Enclosed
Woloohojian

please

find

Realty Corp.

totalling $1 Million

two

(2)

("WRC") checks

Dollars payable

to

Elizabeth

V.

represents a

Bogosian.

This

sum

voluntary principal payment

made by WRC on account of Mrs. Bogosian's

former shareholder interest.
sum shall constitute an
principal

This entire

immediate credit

toward

any

become

due and owing to Mrs. Bogosian in

the federal court

of

sums

which

proceeding on

WRC's purchase

of her

may

account

shares and/or

WRC's liquidation.

WRC,
Estate

James
of

Woloohojian

Harry

Woloohojian

willing to negotiate a
with
the

Mrs. Bogosian
substantive

1992 which

I sent

Mrs. Bogosian
settlement,

global settlement
all of

detailed in

the

dated September

30,

to Mr. Prentiss.

If

is interested in
kindly

the

remain

which covers

areas

offer of settlement

and

a global
______

forward her

written

counterproposal on or before December 31,

1992.

We

immediately

are

prepared

thereafter

to

to

meet

negotiate

final resolution.

Kindly

acknowledge your

receipt of

this letter and the two checks by signing

and returning

the enclosed copy

of this

letter. . . .

When WRC

Bogosian owed the

expenses and

delivered

the checks

law firm $999,957

interest.

F&M

to F&M's

offices,

in accrued legal

contacted Bogosian's

fees,

attorney

____________________

corporate

opportunities.

WRC had

previously held

out the

prospect of obtaining substantial damages from this and other

lawsuits -- thus offsetting the value of Bogosian's
WRC

--

in

contesting

Bogosian's

request

distributions in the valuation litigation.

-66

for

stock in
interim

(Pliakas)5

and asked

that Bogosian

indorse the

two checks

over to F&M pursuant to their assignment agreement.

refused,

and

that

same

day faxed

to

F&M

the

handwritten letter:

Please be
nor

advised that

do I authorize

check

from

I do not

accept

the acceptance

Woloohojian Realty

of a

Corp. or

any affiliates as partial payment

of any

kind for any purpose.

have

been advised,

as your

firm has

represented to Judge Boyle, by Eustace T.

Pliakas, Esq., my primary counsel, that a
355

division

have no adverse
__

of

the corporation

would

tax consequences for

me
__

Bogosian

following

or WRC and that

___
so

if his Honor Judge Boyle

decides as to effect that result that

it would be very favorable to me.

As you know, WRC has purported that there

will

be major

liquidation of
for

my

tax consequences

for the

property in order

to pay

shares

stated in the

which

sale

Judge Boyle

last hearing would

"never

happen."

If by

some means,

Boyle's
take

at the time

final decision,

dollars

property,

instead

I am
of

of Judge
forced to

mortgageable

I question whether or not such

principal of tax effecting does not apply

to me. [sic]

In any event I do not wish to prematurely

determine

Judge

[unreadable]
accept, as

Boyle

decision.

[sic]
I

I have requested

will

final
only

you pursue,

similar interim relief as I have received

in

the

past

obligations.

to

meet

my

on

going

____________________

5.

F&M

Bogosian

explained
directly

that

it contacted

because

it

Pliakas

recognized

rather

that

it

than
had

conflict of interest with Bogosian regarding the checks.

-77

will

not

in

my

present

health

or

circumstances accept any coercive tactics

or any actions taken which is directed to
creating fear of retribution to myself or
any members of my family.

WRC

eventually

dropped

its

acknowledge in

writing receipt

acknowledgment

that the

F&M

and Pliakas

weeks whether

agreement

was

Bogosian

refusing

had

could share

Thus,

breached

on

the next

the

January

litigation

because

authorized such payment,

principal

couple of

money,6 but

no

14, 1993,

F&M

in the district court, alleging

the

assignment

to indorse the checks over to F&M.

the breach, arguing that the

the

Bogosian

(and possible

payments of

discussed over

initiated the present action

that

that

Bogosian still refused to indorse

the parties

reached.

of the checks

checks were

rather than interest), but

them.

requirement

agreement

by

Bogosian denied

checks were not "proceeds" from

neither

the

court

nor

she

and counterclaimed, alleging

had

legal

malpractice

discovery,

district

and

breach

both parties

court

ruled

of

contract

moved

that

by

F&M.

for summary

F&M

was

Following

judgment.

entitled

to

The

summary

judgment on all claims, and Bogosian appealed.

____________________

6.

Bogosian claims that she neither knew

these negotiations,
own

because he

but that

feared

of nor approved of

Pliakas undertook them

that F&M's

abandonment of

on his
Bogosian

could severely harm her position in the ongoing litigations.

-88

II.
II.
___

A. Standard of Review
______________________

We

reading

the

nonmovant.

Cir.

1995).

review a

record

See,
___

grant

in

the

e.g., Byrd
____ ____

Summary

pleadings,

depositions,

admissions

on file,

of summary

light

most

judgment de
__

novo,
____

favorable

to the

v. Ronayne, ___
_______

judgment

answers

together with

is

to

F.3d ___

appropriate

if

interrogatories,

the affidavits,

(1st

"the

and

if any,

show that there is no

and

that the

genuine issue as to any material

moving party

matter of law."

is entitled to

a judgment

fact

as a

Fed. R. Civ. P. 56(c).

B. F&M's Breach-of-Contract Claim

__________________________________

The district court granted

its

breach-of-contract

agreement, the court

of Bogosian's

those

claim

the

assignment

reasoned, was an "absolute

assignment"

"entire interest

because

in any future

proceeds from

litigations to F&M up to the outstanding amount of the

legal bills.

Having

no power to reject

so assigned the proceeds, Bogosian

them.

She was

checks and pay them over to F&M."

v.

F&M summary judgment on

Bogosian, 868 F. Supp.

________

obligated to indorse

had

the

Flanders & Medeiros, Inc.

_________________________

412, 421 (D.R.I.

1994).

Whether

Bogosian

had a good faith basis for refusing the checks, the

court held, is "irrelevant."

The

flaw:

It

district

assumes

Id.
___

court's

that,

analysis contains

because

-99

Bogosian

assigned

fatal

her

interest in future

any

litigation proceeds up

outstanding legal bills, she

reject

any

offer

proposition does

of

partial

not necessarily

litigant may (and often

retaining

to the amount

also gave up

payment.

of

her right to

But

the

follow from the

latter

former; a

does) assign expected proceeds while

the right to accept or reject any offer of payment

or settlement.

None of the cases cited by the district court

____

in support of its construction of the assignment agreement --

and subsequently adopted by F&M as authority for its position

in

its appellate brief -- stands for the proposition that an

assignment

litigant

of

expected

of his

settlement.

For

or

her

litigation

right

example,

to

proceeds

control

the court

cited

deprives

terms

of

Berkowitz
_________

v.

the

Haigood,
_______

606 A.2d 1157, 1160 (N.J. Super. Ct. Law Div. 1992)

(holding that assigned

belong to

receive

client's

them), for

proceeds in attorney's trust

assignee

the

had

account.

Irace,
_____

a settlement

already

been

Id. at 1159-60.
___

594 A.2d

That decision's

receive

no

right

Bogosian,

no power to reject the

to

having

proffered

But the funds the assignee was claiming in Berkowitz

_________

were part of

which

has

proposition that

assigned the proceeds, had

checks.

and client

account

1106

to which Haigood had agreed

____________________________

paid

into

attorney's

trust

The court's reliance on Herzog v.

______

(Me. 1991),

holding that a

funds once he has

his

and

is similarly

"client is

assigned them to

misplaced.

not entitled

to

a third party,"

-1010

id.
___

at 1109, is predicated on the client's acceptance of the

________ __________

settlement offer from which the funds in question derive, id.

___

at

1108.

challenge

In

neither

of

these

the assignor-litigant's

settlement or partial payment.

cases

did

the

assignee

rejection of an

offer of

Nothing

transfer

in the

Bogosian's fundamental

litigation and

Rule 1.2(a) ("A

lawyer shall

to accept

Whether a

See R.I.
___

an offer

reach,

whatsoever

Without

fundamental

for

that

clear

rule

the

the

abide by

a client's

settlement of

parties

own

decision

a matter.").

axiomatic duty would

Island law is a question

assignment

the

control her

Rules of Professional Conduct

of

expression

of

to

to

settlement offer, whether

contract that abrogated this

even be upheld under Rhode

not

agreement purports

right

accept or reject a

in whole or in part.

whether

assignment

contains

intended

of

intent

attorney-client

would be loath to find such intent.

no

such

to

we need

indication

contract.

abrogate

relationship, we

Thus, the assignment

of

"recoveries"

presumes
________

or "proceeds"

her

Otherwise, the

just

prior
_____

"recoveries"

Bogosian

acceptance

of

proffered payment

that; until

ordered by

by

it

has been

only

an

accepted

offer

settlement.

-1111

her

attorneys

proffered

payment.

remains nothing

the court, it constitutes

but

to

by the

more than

client

or

neither "proceeds" nor

of

payment

or

partial

Nor

retained

In

fact,

does

F&M

seriously

dispute

that

Bogosian

the right to accept or reject any settlement offer.

F&M concedes

agreement operated

in

as a

retaining control over

its

security

her cause

brief that

the

agreement, with

of action, and

absolute assignment of litigation rights:

The agreement did

not assign

Bogosian's

causes

to F&M (F&M

could not

of action

have sued WRC on those causes of action),

but only assigned the first proceeds from
the

litigation; it did

interest
amount

in

the

of its

Moreover,

the

not give

F&M an

litigation beyond

earned

fees

assignment

absolute: it would have

and
was

the

costs.
not

been ineffective

assignment

Bogosian

not as

an

if Bogosian had simply paid her bills.7

Brief of Plaintiff-Appellee
_____________________________

at

20.8

These

concessions

____________________

7.

A few

decided

pages further along

that

it

had

in its brief,

better

argue

agreement was in fact an absolute

Bogosian's attempt

that

the

assignment.

assignment

Responding to

to distinguish In re Apex Oil Co.,

____________________

F.2d 1365 (8th Cir.

for the

F&M apparently

1992) -- which the district

proposition that an assignment

975

court cited

transfers all rights

in the assigned property -- on the ground that the assignment

in

that

case

was

informed

this

Court

conditioned upon
28 n.13.

8.

F&M

"such

"the

than

conditional,

assignment

here

was

F&M
not

Brief of Plaintiff-Appellee at
____________________________

We find F&M's first interpretation more convincing.

also cited
as

agreements
expenses

that

anything."

the

numerous cases

one

Plaintiff-Appellee
__________________

E.g.,
____

absolute rather

between
at

as security
rather than

as

upholding agreements

F&M

and

20,

all
___

of

for

an attorney's

as absolute

Skarecky & Horenstein, P.A.

___________________________

Bogosian,"
which

Brief of
_________

construed

the

unpaid fees

and

assignments of

proceeds.

v. 3605 N. 36th St. Co.,

_____________________

825 P.2d 949, 952 (Ariz. App. 1991); In re Conduct of Taylor,

_______________________
878 P.2d 1103, 1110
419,

423

(Wyo.

agreements in

(Or. 1994); Burk v. Burzynski,

____
_________

1983).

some of

that

they were

than

the assignment

Although

the

these cases more

intended to

operate as

agreement

language

672 P.2d
of

the

clearly established
security agreements

here, both

the November

24

-1212

notwithstanding, F&M argues that

to reject WRC's

Bogosian still had no right

$1 million voluntary payment because

it was

not an offer

of settlement.

requirement that

applied

to

At least after

WRC dropped the

Bogosian stipulate that the

principal

and

imposed no conditions on

not interest,

money would be

F&M

argues,

WRC

Bogosian's acceptance of the money.

Therefore, so this argument goes, Bogosian could not have had

any valid reason for rejecting the checks.

This

argument

proffered payment did in

namely, that

the $1

also

misses

the

mark,

for

the

fact contain an implicit condition:

million portion of

Bogosian's ultimate

award represented by the two checks would be paid in cash and

not property.

forgoing

payment

Bogosian, in accepting

the checks, would

be

her right to attempt in the future to structure the

of that

portion

of her

award

in an

advantageous

manner.

Thus, while WRC's offer of payment may not have been

partial

"settlement

offer"

acceptance nevertheless could

options, and she

may well

in

the

usual

sense,

its

have limited Bogosian's future

have had

legitimate reasons

for

refusal.

____________________

letter

and

the

assignment

assignment of proceeds
paid F&M's

bills.

document

to the extent

Thus, F&M

limit

Bogosian's

that Bogosian has

would have

no rights to

not
any

proceeds unless and only to the extent that Bogosian fails to

pay her attorney's bills.
of security.
no meaningful

This is an assignment for purposes

See In re Apex Oil, 975 F.2d at 1369

___ _______________
difference between a security

assignment for purposes of security.").

-1313

("We see

interest and an

Moreover, there is evidence that the possibility of

Bogosian

ultimately receiving property

exchange

for

governing

value of

her

shares

the valuation

is no

rather than

pipedream.

The

litigation provides that,

Bogosian's shares have been

cash in

statute

once the

determined, "the court

shall set forth in its order . . . the purchase price and the

time within which the

payment shall be made, and may decree

_______________

such other terms and conditions of sale as it determines to

_____________________________________________________________

be appropriate . .
_______________

added).

The

. ."

R.I.

district court in

Gen. L. 7-1.1-90.1 (emphasis

the valuation case

stated:

What

[Bogosian's]

judgment

remains to be seen.

will

be

It may be that the

___________________

court will order satisfaction of the

_________________________________________
purchase
price
by the
transfer of
_________________________________________
particular parcels of real estate,
____________________________________
least

at

in part, a result contended for by

Plaintiff.

What

is

clear

beyond

peradventure is that it is for this Court

to

determine, under the precise terms of

the statute, the "terms and conditions of

sale

as

it

determines

Until

this Court has had the opportunity

to do

so,

Plaintiff

does

definable

interest

in

property.

There

is

no

appropriate."

not
any

have

specific

judgment

Plaintiff which may be levied upon.

for

recently

Bogosian v. Woloohojian,
________
___________

C.A. No. 88-0373B, slip. op. at 7-8

(D.R.I. Aug. 4, 1995) (emphasis added).

Nevertheless, F&M

argues that, even

assuming that

Bogosian eventually could receive property instead of cash as

_____

payment for her shares,

reason

for

rejecting

she could not have had

the

checks because:

-1414

(1)

a good-faith

she

would

eventually

have to

disposition

pay

of property

eventual sale of

the law

by the

firm

in cash,

court would

so even

necessitate an

assets, and (2) any payments made

to F & M

would be tax-deductible, so a cash payment from WRC would not

have

any

adverse

tax

consequences.

similarly unpersuasive: Bogosian

any

property she receives and

perhaps F&M would even acquire

And even if a

might prefer

reasons,

more

believes its

argument

could conceivably

pay F&M from

a disposition of

an interest in the

its

property for

she believes

court-assigned

appreciation rate

mortgage

property.

Bogosian

non-tax-related

the property

valuation,

is

those funds, or

cash payout would be tax-deductible,

e.g., because

than

This

or

is worth

because

and income stream

she

will more

than compensate

it to

for interest costs she

pay off F&M.

incurs in mortgaging

In any event, Bogosian

asserted in her

faxed response to F&M, on the same day that F&M requested her
_______________

indorsement of

the checks, that she did not want to do so in

part

foreclosing the

to avoid

possibility of

the district

court awarding her "mortgageable property" instead of cash.

If

Bogosian did not

in fact reject

the checks in

good faith,9 but rather simply because she wanted the cash in

____________________

9.

F&M

is correct, of course, in stating that good faith is

not a defense to a breach-of-contract claim.

(Second) of Contracts
_____________________
not

hold that a

See Restatement
___ ___________

11, introductory note (1979).

good-faith belief that she

We do

did not have to

assign the checks to F&M would absolve Bogosian of liability;

rather,

we hold that if Bogosian rejected the checks in good

________
faith

-- i.e., for some legitimate reason not connected to a

-1515

her hands rather

have

breached the

than in

F&M's coffers, then

covenant of

contracts under Rhode Island

Inc. v. Equipmentlease Corp.,

____
____________________

good

law.

she may

faith implicit

well

in all

See Crellin Technologies,

___ _____________________

18 F.3d 1, 10 (1st

Cir. 1994)

("Rhode

Island

contains

recognizes

that

virtually

an implied covenant of good

every

contract

faith and fair dealing

between the parties."); Ide Farm & Stable, Inc. v. Cardi, 297
_______________________
_____

A.2d

643, 645 (R.I.

covenant

of

good

1972) (stating that

faith

and

contractual objectives may be

that a

fair

rejected the

checks for

dealing

achieved").

rational jury, presented with

in the summary judgment

purpose of implied

is

"so

that

We find, however,

the evidence contained

record, could conclude that Bogosian

a legitimate reason,

and therefore

summaryjudgment
onF&M'sbreach-of-contractclaim
isinappropriate.10

____________________

desire

to keep the money

the assignment
contract.

herself and avoid

agreement --

then she has

the dictates of
not breached

the

10.

rational jury

Bogosian only had an

going

might also

into F&M's pocket,

as counsel for F&M

The fact

of the $1

million for Bogosian,

to

course, that

aversion to receiving cash when

argument.

the

conclude, of

it was

put it at oral

that Pliakas tried to negotiate

a share

and Bogosian's argument

to

district court that F&M should not have asserted a claim

the money when

it knew that

she needed the

other creditors, support this view.

intent requires an assessment of

cash to pay

Divining Bogosian's true

her credibility, a task for

the factfinder, not the court.

We have also considered, and found meritless, F&M's
assertion that
interpleader

comments by Bogosian's attorney

action estops

proffered $1 million were

arguing

against

Bogosian's

the

attorney

her

from arguing

not "proceeds."

interpleading
told

"proceeds" of the valuation

the

of

in a related
now that

In the
WRC's

court that

the

the

course of

$1

million,

funds

were

litigation and their disposition

-1616

Although

liability,

we

remand

for

trial on

the

issue

of

we leave intact that part of the district court's

summary judgment ruling establishing the amount Bogosian owed

F&M

as

of

the

date

of

Bogosian argues that this

never

specifically

pursuant to

Fed. R.

asked

Civ.

alleged

breach,

interest.

would be inappropriate because F&M

for

"partial

P. 56(d).

summary

We

requirement; Rule 56(d) states that a court,

under this rule (Rule

_______________

plus

know

judgment"

of no

such

"[i]f on motion
______________

56) judgment is not rendered upon the

__________________________________

whole case[,] . . . shall if practicable" specify those facts

__________
____________________

that

and

are without

substantial controversy.

affidavits made

clear that

legal fees

and expenses

were

and

fair

performed

for

asserting that

detailed in its

reasonable

Bogosian.

accuracy or truthfulness

it was

in

light

of

Bogosian

charged

for

____________________

the

services

contested

it

the

of any of those statements, nor did

Bogosian offered her

certain

the

billing statements

never

she adduce any expert testimony that the

excessive.

F&M's pleadings

portions

requested fees were

own opinion that

of

the

the fees

litigation

were

should
his
to

be determined in that

action.

We

do not understand

comments to amount to an assertion of rights by Bogosian

the money,

estopped

from

and we

therefore hold

arguing

that

the

that Bogosian

funds

were

not in

is not
fact

"proceeds" or "recoveries."

-1717

excessive,11 but her

generalized assertions

are not

enough

to create a "substantial controversy" about the amount she is

obligated to pay

she is found

Civ.

under her contract with

to have breached

P. 56(e) ("When a

F&M, assuming that

that contract.

motion for summary

See Fed.
___

R.

judgment is made

and

supported as provided in this rule, an adverse party may

not

rest upon the mere allegations or denials of the adverse

party's

pleading,

affidavits or

but

Supp.

trial."); see
___

6,

adverse

as otherwise provided

forth specific facts

for

the

party's

in this rule,

showing that there

also
____

(D.D.C.

Bennett v.
_______

1988) (awarding

Ins.,
____

issue

Martin-Trigona, 686
______________

summary

judgment

failed to

by

must set

is a genuine

plaintiff-attorney after defendant-client

evidence of specific errors in

response,

F.

to

provide

bills); cf. Pfeifer v. Sentry

___ _______
______

745 F. Supp. 1434, 1443 (E.D. Wis. 1990) (stating that

when

amount

burden of

of attorney

fee

is

challenged, attorney

proving reasonableness of fee,

has

but opposing party

has responsibility to state objections with particularity and

clarity).

This

called on

is not a

to determine

fee-award case, where

a reasonable

the court is

attorney's fee

in the

____________________

11.

For example, Bogosian asserted

than

$200,000

for

work

that she was billed more

concerning

partnerships" yet no lawsuit was ever

her

filed.

"Section

Bogosian never

bothered to direct us (or the district court) to the specific

billing

entries that

she

claims represent

alone those entries that she deems excessive.

-1818

this work,

let

first

instance;

it

is

contract

case,

and

Bogosian's

obligations to F&M are defined by that contract.

See Laverty
___ _______

v.

("[W]hat

Pearlman,
________

654

A.2d

696, 703

(R.I.

1995)

plaintiff may be bound to pay and what an attorney is free to

collect under a fee agreement are not necessarily measured by

the

'reasonable attorney's

fee' that

a defendant

must pay

pursuant to a court order." (quoting Venegas v. Mitchell, 495

_______
________

U.S. 82,

(7th Cir.

the

fee

90 (1990)); see also A Sealed Case, 890 F.2d 15, 17

___ ____ _____________

1989) ("Fees are

is

so

matters of contract,

exorbitant

[professional

conduct

resolved under

that body of

rules],

extensive

work

performed

lawsuits

is not

on its

utterly failed

fees

and

its

collection

disputes

about

law.").

in a

were

breach-of-contract

of

in

not

fee for

and Bogosian

has

the claimed

incurred,

are

Thus, the amount owed to F&M on

claim

is

not

in

substantial

controversy and is deemed established upon remand.12

C. Bogosian's Counterclaims
____________________________

are

bitterly-fought

that any of

fact

offends

that

$1 million

number

to provide evidence

expenses

face exorbitant,

unreasonable, or exorbitant.

its

that

and unless

Bogosian's

count,

alleged

counterclaim,

thirty-four

breach-of-contract

by F&M.

by the

instances

of

district court's

malpractice

or

Flanders & Medeiros, Inc.

__________________________

v.

____________________

12.

Subject,

interest and

of

course,

to appropriate

fees incurred under the

of

contract subsequent to

the district court's summary judgment order.

-1919

recalculation

Bogosian,
________

district

868

F. Supp.

court granted

at 417

F&M summary

because Bogosian had failed

the form of

scope of

Id.
___

Bogosian

because (1)

judgment on

on the standard

which F&M should

now

(D.R.I. 1994).13

The

each claim

to adduce competent evidence, in

expert testimony,

duty to

n.4

argues

that the

merely identifying
___________

of care

be held, or

district

and

on damages.

court

erred

an expert witness

who would

characterization

of

____________________

13.

The

district

court's

allegations, with which we largely agree, was as follows:

(a)

F&M's

failure to

obtain sufficient

interim relief in the WRC litigation; (b)

F&M's

failure

to

properly

supervise

the

expert

witness

appraisal
Master;

Eric

Berenson

proceeding before
(c) F&M's

certified

the

the Special

failure to

income and

in

insist on

expense statements

from WRC in the valuation proceeding; (d)

F&M's

failure to

Master's
alia,

report on
the

Master to

the Special

the basis

of, inter

appropriateness

comparables

real

object to

relied

upon by

of

the

the Special

arrive at the value of certain

estate,

his

valuation

of

WRC's

management business based upon two years'

management

contracts,

whether there
site;

and the

was a waterway

(e)

F&M's

representation

of

issue of
on another

withdrawal
Bogosian

of

its

in the

WRC

litigation, and its failure to bring suit

to

enjoin

entering

Bogosian's

into

brother

unauthorized

from

management

contracts; (f) F&M's numerous failures to

take

action

in

relation

receiverships; and (g)

take

action

to have

general

partner

limited partnerships.

the

F&M's failure

two
to

Bogosian's brother

declared incapacitated
a

to

and terminated as
of

the

Section

886 F. Supp. at 417 n.4.

-2020

testify

in support

of her

summary

judgment motion,14

claims was

and

enough to

(2) certain

survive a

of her

claims

did not require expert testimony.

Bogosian's first

stated

argument is

plainly

wrong.

We

in Focus Inv. Assocs. v. American Title Ins. Co., 992

__________________
_______________________

F.2d 1231, 1239 (1st Cir. 1993), that under Rhode Island law,

"a legal malpractice plaintiff

establishing

attorney's

trier of

the

the

care and

fact can resolve

'common

negligence is

legal

appropriate standard

lack of

knowledge."

knowledge'

skill is

care

unless the

so obvious

the issue as

that the

a matter of

category

are

those

'clear and palpable,' or where

is

involved."

Bogosian's claims require

testify

of

common

We further explained that claims that "fall into

expertise

therefore the

must present expert testimony

Id.
___

analysis of

mere identification
______________

where

the

no analysis of

Virtually

all

legal expertise,

of an expert

of

and

expected to

at trial would in no way demonstrate the standard of

care applicable to F&M, an essential element of her case.

____________________

14.

Bogosian

filed

supplemental

interrogatories

identifying an

testify on

behalf on

her

months after
and only

expert

February

before the

summary

to

F&M's

witness prepared

15, 1994,

the September 24, 1993,

a week

response

almost

to
five

discovery closure date

judgment motions

were

argued before

a magistrate-judge.

The supplemental response

contained

indication

nature or

expert's
testify

no

of

the

expected testimony other than to

"in

support

of"

counterclaims.

-2121

Bogosian's

basis

of

the

say that he would

defenses

and

Summary

judgment is

"mandate[d] .

. .

against a

party who fails to make a showing sufficient to establish the

existence of an

element essential to that

party's case, and

on which that party will bear the burden of proof

Celotex Corp. v.
______________

moving

party

"showing"

the

Catrett, 477
_______

discharges

absence of

material

fact by pointing

there is

an absence

party's

case."

U.S. 317,

his

or

genuine

out to

of evidence

Id. at
___

325.

F&M

her

322 (1986).

initial

burden

issue concerning

the district

to

at trial."

support the

The

of

any

court "that

nonmoving

discharged this burden by

pointing in its summary judgment motion to Bogosian's absence

of

expert

testimony

in

support

of

her

counterclaims.15

Therefore, summary judgment was appropriate as to all of

her

claims that required the analysis of legal expertise.16

____________________

15.
to

Bogosian argues that F&M

identify an
________

obligation

only complained of her failure

expert witness,

to do

any

and thus

more than

that.

she was
F&M's

under no

motion

for

summary judgment, however, clearly states that Bogosian "must

present

expert

testimony"

and

that

testimony to support this claim."

not

yet

even

stronger way

identified an

she

"has

no

expert

Stating that Bogosian

expert

witness

of stating that she had

was

had

simply a

no hope of bearing her

burden of proof at trial.

16.

Bogosian also argues that

discretion

the district court abused its

in denying her request,

pursuant to Fed. R. Civ.

P. 56(f), for more time to produce expert witness affidavits.

She

bases this argument

that she adduce expert

was

on the notion

that the requirement

testimony to survive summary judgment

a "new rule" dreamed

up by the

magistrate-judge at the

summary

judgment hearing,

case constitutes an
legal

poppycock;

proving most types

adopted

and that

its application

abuse of discretion.
the

requirement of

to her

This argument

expert

testimony

of malpractice claims has been

is
in

so widely

that "it may even be malpractice to litigate a legal

-2222

Bogosian

were of

the

type

also argues

that

that not

required

expert

all of

her claims

testimony.

For

example, she argues that the district court failed to realize

that

her allegation that F&M breached its duty of loyalty to

Bogosian

when it

placed its

own interest

in getting

paid

ahead of Bogosian's possible interest in receiving a property

distribution rather than cash, adequately limned a breach-of-

fiduciary

allegation

duty

claim.

that

F&M

Similarly,

withdrew

she

from

argues

that

ongoing litigation

her

in

violation of their contract states a breach-of-contract claim

(assuming

that

the contract

continue

representation

litigation) that

perform to the

Bogosian

contains

until

is completely

the

an

implied term

conclusion

distinct from F&M's

appropriate standard of care.

argues,

as

well

as

of

to

the

duty to

These claims,

smattering

allegations contained in her counterclaim, require

of

similar

no expert

testimony because they do not

require the analysis of

legal

expertise.

We

because even

need not

any
___

of her

question

assuming arguendo that Bogosian

________

stated claims that

failed to

answer the

Bogosian poses,

has adequately

do not require expert

___

testimony, she has

introduce adequate evidence of

damages to support

claims.

See 1
___

Ronald E.

Mallen &

Jeffrey M.

____________________

malpractice case without expert

testimony."

Wilburn Brewer,

Jr., Expert Witness Testimony in Legal Malpractice Cases, 47

____________________________________________________
S.C. L. Rev. 727, 733 (1994).

-2323

Smith, Legal Malpractice

_________________

of

legal malpractice

monetary compensation

damages

16.1 (1989) ("Since the objective

suit

for an

is

usually

the recovery

injury, pleading and

proof of

are essential to a cause of action."); cf. Moores v.

___ ______

Greenberg,
_________

834 F.2d

1105, 1111

(1st Cir.

1987) ("Whatever

form a legal malpractice action takes, the plaintiff

burden

of

of

introducing

consequential

evidence

damages.").

In

to

her

justify

an

has the

award

of

Counterclaim, Bogosian

raised the

specter of having

duplicate work

yet

to hire additional

already performed by

she never provides further

answering

F&M's

scope

her

of

damages,

value of

paid

ahead

the

In

nature

and

answered

(or

& Medeiros' breach

Such an

assessment was

As for F&M's placing its own interest in

of

Bogosian's

possible

obtaining a property distribution for the

stock's

costs.

"[a]n expert will assess the

further discovery."

forthcoming.

getting

repeatedly

damages sustained from Flanders

upon obtaining

never

regarding the

Bogosian

incorporated by reference) that

her abandoning lawyers,

evidence of such

interrogatories

lawyers to

interest

in

full amount of her

value, the $1 million was never received by F&M, and

record

contains no

evidence

that

the possibility

of

Bogosian receiving a

been diminished

distribution entirely

at all.17

Thus,

in property

Bogosian had

has

not adduced

____________________

17.

The

checks

interpleader action
rights of

eventually
in the

various creditors

expired;

WRC

district court to

initiated

an

determine the

of Bogosian, including

F&M, to

-2424

competent evidence sufficient

to prove an essential

element

of her claim, namely,

that these alleged breaches by

F&M --

whether or not proof thereof would require expert testimony -

- have in fact damaged her.

Therefore, summary judgment must

be granted for F&M on these claims.

III.
III.
____

For

district

the foregoing

reasons,

the

decision of

the

court is reversed in part, affirmed in part, and

__________________________________________

remanded for
further proceedings consistent
with this
_____________________________________________________________

opinion.
_______

____________________

funds WRC expected to pay to her.

-2525