Home RICHARD P. BROWN & another [Note 1] vs. BARRY H. GERSTEIN & another. [Note 2]

17 Mass. App. Ct. 558

December 14, 1983 - March 5, 1984

Essex County


Plaintiffs seeking damages from their former attorney for negligently failing to bring an action to enjoin a foreclosure proceeding against them presented no evidence tending to show that the foreclosure would not have occurred if the action had been brought, and, thus, that the attorney's negligence caused them injury. [565]

Plaintiffs seeking to recover damages for the negligence of the attorney they had engaged to bring suit against a bank to enjoin mortgage foreclosure proceedings on a parcel of commercial real estate owned by them could not prevail on the theory that the attorney was negligent in failing to advise them on other actions they might take to avoid foreclosure on the mortgage, in the absence of expert testimony that an attorney whose employment was thus limited would undertake to give advice on this subject. [565-566]

Evidence in an action by clients against their former attorney, whom they had retained to bring an action to enjoin mortgage foreclosure proceedings against them, would have warranted the jury in finding that the attorney knowingly made false representations of material fact to the effect that the foreclosure sale would not take place, that the plaintiffs expressly relied on these representations, and that, had they been told the truth, they would have sought to avoid a forced sale by pursuing other alternatives. [566-567]

Evidence in an action by clients against their former attorney would have warranted the jury in finding that the plaintiffs had sufficient funds to discharge a mortgage on real property owned by them but that, as a result of the attorney's deceit, they were prevented from doing so. [567-568]

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In the circumstances of an action by former clients alleging deceit by their attorney, the practice of law constituted "trade or commerce" for purposes of the attorney's liability under G. L. c. 93A, the Consumer Protection Act. [569-570]

Lessors of commercial property, who retained an attorney to commence an action to enjoin the foreclosure of a mortgage on the property, were acting in a business context, and thus engaging in "trade or commerce" within the meaning of G. L. c. 93A, Section 11. [570-571]

In a civil action by a former client against an attorney, derivative liability of a second attorney on the basis of partnership by estoppel was not established either by the fact that the client had, some years earlier, paid for legal services in an apparently unrelated matter by means of a check payable to both attorneys, or by the second attorney's knowledge that both attorneys' names appeared together on the office stationery. [571-572]

CIVIL ACTION commenced in the Superior Court on September 19, 1977.

The case was tried before O'Leary, J., a District Court judge sitting under statutory authority.

John D. Dwyer for the plaintiffs.

Erik Lund for the defendants.

GREANEY, J. The plaintiffs' amended complaint sought to recover damages from the defendants, both lawyers, on allegations (1) that Gerstein had committed malpractice in representing them in connection with a suit to restrain a mortgage foreclosure; (2) that his conduct also violated G. L. c. 93A; and (3) that Weiner, who practiced law with Gerstein, was derivatively liable for Gerstein's actions as his "partner by estoppel." The common law claims were tried to a jury; the c. 93A claim to the judge. See Nei v. Burley, 388 Mass. 307, 311-315 (1983). At the conclusion of the plaintiffs' case the judge allowed a motion filed by the defendants on the c. 93A claim captioned "Motion for Directed Verdict." [Note 3] The jury returned a verdict in the

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amount of $15,000 for the plaintiffs, which the judge set aside on the defendants' motion for judgment notwithstanding the verdict. Mass.R.Civ.P. 50(b), 365 Mass. 814 -815 (1974). The plaintiffs have appealed from the judgment entered for the defendants. We reverse the judgment for Gerstein and order a new trial as hereinafter set out. We affirm the judgment for Weiner.

In deciding whether the judge acted properly in entering judgment notwithstanding the verdict on the common law claims, we apply the standard applicable to a motion for directed verdict. D'Annolfo v. Stoneham Housing Authy., 375 Mass. 650, 657 (1978). Moran Travel Bureau, Inc. v. Clair, 12 Mass. App. Ct. 864 (1981). This test focuses on 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." Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972), quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302 (1943). Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 785-786 (1982).

Viewing the evidence in this light, we conclude that the jury could have found the following. [Note 4] In 1975, the plaintiffs owned a parcel of commercial property in Wenham which they had purchased in 1967. The parcel contained a building, a major part of which was leased to Richdale Dairy Stores, Inc., for the operation of a convenience store, and the balance of which was rented to a second store under a tenancy at will. In the summer of 1974, the mortgagee on the property, Danvers Savings Bank (bank), claimed a default in the mortgage, an assertion which the plaintiffs contested. They consulted Gerstein, and, at Gerstein's request wrote a letter detailing to him their dispute with the bank. [Note 5] In January, 1975, the plaintiffs formally retained

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Gerstein "to bring suit against the . . . bank for breach of contract" based on the bank's alleged mishandling of their loan. [Note 6] Gerstein advised the plaintiffs "not to have anything to do with the [bank because] . . . he would handle everything."

By letter dated April 18, 1975, the bank notified the plaintiffs that its board of investment had voted to commence foreclosure, that future payments on the loan would not be accepted, and that the plaintiffs would be liable for any deficiency resulting after foreclosure. Gerstein assured the plaintiffs "not to worry about [the notice] . . . [t]hat he would take care of everything [a]nd that he was drawing up papers to file against the bank."

Shortly after June 13, 1975, the plaintiffs received from the bank's attorneys a copy of the order of notice issued by the Superior Court on the bank's complaint to foreclose the mortgage. Gerstein also received a copy of this notice and again assured the plaintiffs "not to worry . . . that it [the foreclosure] wouldn't happen [because] he would take care of everything."

On July 30, 1975, the plaintiffs received written notice advising them that a foreclosure sale would be held on or after September 3, 1975, and that they would be liable for any resulting deficiency. The Browns promptly brought this notice to Gerstein's attention. Gerstein advised them that an amended complaint was being prepared, [Note 7] and made no mention of any problems.

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On August 1, 1975, the plaintiffs signed and swore to an amended complaint. This complaint alleged that the bank was solely responsible for the mortgage default, and that it had improperly refused to allow the plaintiffs to cure the default. The complaint sought preliminary injunctive relief to enjoin the foreclosure as well as an accounting and damages. Gerstein told the plaintiffs that he would file the complaint in the Superior Court. Shortly thereafter he advised the plaintiffs that he had in fact filed the complaint and that "there would be no foreclosure." The plaintiffs relied on these assurances. Gerstein never filed the complaint. He did not tell the plaintiffs that it had not been filed or that neither a temporary restraining order nor an injunction would be applied for.

On August 15, 1975, the plaintiffs received a copy of the bank's legal advertisement of the foreclosure sale which had been published in a local newspaper. This notice set the foreclosure sale at 2:00 P.M. on September 3, 1975. The notice was immediately brought to Gerstein's attention. Gerstein advised the Browns that "everything was being held in abeyance" and "that there would be no foreclosure." On August 28, 1975, Richard Brown met Gerstein. He again told Brown that "there wasn't going to be any auction sale and that he (Gerstein) might . . . have a customer for the property." These representations were false. [Note 8] The

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property was sold to a third party at foreclosure auction on September 3, 1975, for $62,000 without the plaintiffs' knowledge.

When the plaintiffs discovered that the property had been sold they confronted Gerstein, who then told them that he had had a "deal" with the bank's attorney, see note 8, supra, and that this lawyer had "double-crossed him." Gerstein recommended that the plaintiffs file an immediate suit against the bank and its counsel and assured the Browns that he would appear as a witness on their behalf at the trial. To this end, Gerstein directed the plaintiffs to another lawyer in his office. This lawyer prepared yet another complaint against the bank. This complaint, seeking damages, accused the bank of bad faith and repeated the substance of the amended complaint with one difference; it contained an assertion that at the time of the foreclosure sale "the plaintiffs were . . . financially unable to purchase the property." [Note 9] The plaintiffs reviewed the complaint and swore to its contents. The attorney, however, declined to represent the plaintiffs after receiving information from the bank's counsel which made it doubtful that the plaintiffs could prevail at trial. As a result, the complaint was never filed and the lawyer terminated his relationship with the plaintiffs after telling them that he had returned their file to Gerstein.

There was testimony that Gerstein never advised the plaintiffs of options to prevent foreclosure. [Note 10] The judge excluded testimony, preserved by a proper offer of proof, that had the Browns known that Gerstein had not filed the complaint

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and that the foreclosure sale would take place, they would have sought to avoid the sale by: (1) engaging another attorney to file suit and seek an injunction on a different theory of law, [Note 11] (2) curing the default by paying the arrearage, [Note 12] (3) attempting to sell the property or to refinance the debt with another lender, (4) attending the foreclosure sale with the required deposit either to purchase the property or to bid it up to full market value, or (5) discharging the mortgage by paying the entire indebtedness. There was further testimony that the plaintiffs had funds, independent of borrowing, which could have been used for these purposes. These funds were contained in two trusts for the benefit of Ann Brown. The first was a personal trust containing about $30,000, the terms of which permitted payments of principal to Ann Brown in the sole discretion of the trustees. The second was a testamentary trust, containing about $70,000. Ann Brown could obtain principal from the latter trust "as she deem[ed] advisable." The annual income from the testamentary trust averaged $4,000. In addition to the assets of the trusts, there was testimony that the plaintiffs had substantial equity in their home.

A few other facts are relevant to the discussion of the common law claims. The measure of damages was stipulated to be the difference between the $62,000 paid by the

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buyer at the foreclosure sale and the fair market value of the premises. There was evidence which would have warranted a finding that, on September 3, 1975, the premises had a fair market value of at least $100,000. The judge considered the common law malpractice claims as solely limited to Gerstein's negligence in failing to file the amended complaint. On this hypothesis, the judge instructed the jury that the plaintiffs could recover only if they found that an injunction could have been obtained on the facts alleged in the amended complaint, declining to put to the jury the question whether Gerstein was liable for deceit.

1. We first consider the common law claims of malpractice. It is conceded that an attorney-client relationship existed between Gerstein and the Browns and that Gerstein was negligent in failing to file the amended complaint. We are satsified that the judge properly rejected the plaintiffs' claim that the foreclosure would have been enjoined for the reasons stated in his memorandum on the motion for judgment n.o.v. In that memorandum, the judge pointed out that the plaintiffs had to establish that they "would have succeeded in the underlying litigation but for the attorney's negligence in not bringing suit." See McLellan v. Fuller, 226 Mass. 374, 378 (1917); Glidden v. Terranova, 12 Mass. App. Ct. 597, 600 (1981). He correctly concluded that the plaintiffs had not presented any evidence from which the jury could find that the various assertions of wrongdoing on the part of the bank were true and that the plaintiffs would have succeeded in enjoining the foreclosure sale. As a consequence, there was no evidence which would warrant a finding that Gerstein's failure to file the amended complaint proximately caused the plaintiffs any damage.

The plaintiffs argue, however, that Gerstein was negligent because he failed to advise them of alternatives to avoid foreclosure (and in the case of the remedy allegedly provided by G. L. c. 244, Section 22, because he failed to find and plead that statute), and that Gerstein was liable for deceit. Because of this conduct, the Browns claim they were unable to take action which would have saved their property. The

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defendants argue, on the other hand, that the judge properly kept these theories from the jury because (1) Gerstein was hired only to prepare, file and try the amended complaint and not to give general advice on other avenues that might prevent foreclosure, (2) in any event, expert testimony was necessary to establish that a lawyer in Gerstein's position would have given advice about such alternatives, (3) deceit was never pleaded and tried, and (4) there was insufficient proof that if any of the alternatives had been pursued, the foreclosure could have been avoided.

We think the plaintiffs cannot prevail on their theory that Gerstein was negligent in failing to advise them of the options to avoid foreclosure, see note 10, supra. The only evidence concerning the scope of Gerstein's employment confined his representation to "bring[ing] suit against the . . . bank for breach of contract." Whether a lawyer whose employment was so limited would undertake to give his client general advice about ways to avoid foreclosure was a subject requiring expert testimony in accordance with the rule that "expert testimony is generally necessary to establish the standard of care owed by an attorney in the particular circumstances and the defendant's alleged departure from it." Glidden v. Terranova, 12 Mass. App. Ct. at 598. We also think the plaintiffs could not recover on the theory that Gerstein failed to discover or plead G. L. c. 244, Section 22. That statute is beyond the understanding of lay people and expert testimony was necessary to establish that a lawyer in Gerstein's position should have discovered the statute and, if he had, that it could have been used to obtain an injunction. [Note 13] What has been said so far eliminates the various negligence theories from the case.

This does not end the matter, however, because we must consider whether the evidence was sufficient to hold Gerstein

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liable for deceit. [Note 14] "Fraud or deceit . . . is no more a necessary incident to the rendition of legal services than dishonesty is to any other profession. The avoidance of fraudulent conduct requires no special skill or knowledge, but only basic precepts of honesty and integrity. When committed by an attorney, the tort of fraud or deceit is determined by essentially the same rules that apply to any defendant, regardless of whether he is a professional." Mallen & Levit, Legal Malpractice Section 107 (2d ed. 1981). See S.J.C. Rule 3:07, DR 1-102(A)(4), as appearing in 382 Mass. 769 , 770 (1981) ("A lawyer shall not . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation"). Here the jury could have permissibly found that Gerstein had knowingly made false representations of material fact to the effect that the foreclosure sale would not take place, that the Browns had expressly relied on these representations, and that had the Browns been told the truth, they would have sought to avoid a forced sale by pursuing other alternatives.

2. We then come to the question whether any damage resulted from the deceit. See Szpiro v. Corkin, 340 Mass. 260, 262 (1960); Mallen & Levit, Legal Malpractice Section 107, at 185 (2d ed. 1981). We have already concluded that the plaintiffs cannot prevail on the theory that they were denied recourse to G. L. c. 244, Section 22. We also conclude that causation was not established with respect to payment of the arrearages, [Note 15]

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sale, or remortgage of the property, [Note 16] and the possible purchase of the property by bidding at the foreclosure sale. [Note 17] The plaintiffs' proof, however, was sufficient to warrant a jury in concluding that they could have paid off the entire mortgage had they known that the sale was going to occur. On this issue, the jury could have found that the plaintiffs had funds available to Ann Brown in a testamentary trust which she could have withdrawn without restriction. The jury could have also found that the amount of available money in that trust was sufficient to discharge the mortgage loan. [Note 18] We conclude that the plaintiffs should have been allowed to go to the jury on the theory that Gerstein's deceit had caused damage (the measure of which was stipulated) by preventing them from paying off the entire mortgage indebtedness. [Note 19]

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3. We next take up the plaintiffs' assertion that the judge erred in the disposition of their claim under G. L. c. 93A. The plaintiffs concede that they could not recover under Section 9 of c. 93A because no demand letter was sent to the defendants. See Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704 (1975); Entrialgo v. Twin City Dodge Inc., 368 Mass. 812, 813 (1975). They argue, however, that the evidence of deceit was sufficient to warrant findings that Gerstein had violated Section 2(a) of c. 93A, inserted by St. 1967, c. 813, Section 1, and that they could recover for the violation under Section 11 of c. 93A, inserted by St. 1972, c. 614, Section 2. The judge appears, however, to have ruled, as matter of law, that such

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an action could not be maintained because the attorney-client relationship does not involve "trade or commerce" within the meaning of those words in Sections 2(a) and 11. The defendants urge that this ruling be upheld, relying principally on the line of cases decided under both Section 9 and Section 11 of c. 93A which exclude essentially private transactions from the statute's application. See Lantner v. Carson, 374 Mass. 606, 611 (1978); Manning v. Zuckerman, 388 Mass. 8 (1983); Weeks v. Harbor Natl. Bank, 388 Mass. 141 (1983); Newton v. Moffie, 13 Mass. App. Ct. 462 (1982).

In deciding whether Gerstein's alleged wrongdoings occurred within the conduct of trade or commerce as required by Section 2(a) of c. 93A, we find the decision of Guenard v. Burke, 387 Mass. 802, 808-811 (1982), controlling. [Note 20] Guenard held that a claim against an attorney by his client for damages in connection with the attorney's execution of an unlawful contingent fee agreement could be maintained under G. L. c. 93A, Sections 2(a) and 9. The decision further held (at 809) that the attorney's reliance on the illegal agreement for his fee constituted, as matter of law, an unfair or deceptive act prohibited by c. 93A, Section 2(a), and that the violation entitled the plaintiff to press her claims for multiple damages, attorney's fees, and costs.

While the issue raised here is not expressly discussed in Guenard, that decision in straightforward fashion applies c. 93A to the attorney-client relationship. We consider Guenard to be authority for the proposition that in circumstances like those here present the practice of law constitutes "trade or commerce" for purposes of liability under c. 93A. We, therefore, proceed no further to ponder the relevance of the private action decisions to c. 93A claims arising out of the attorney-client relationship.

The question whether the plaintiffs were engaged in trade or commerce (a prerequisite to recovery under Section 11), [Note 21]

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was one for the judge as the trier of fact. The evidence warranted a finding that the plaintiffs as lessors of commercial property (and perhaps as commercial clients of Gerstein) were acting in a business context and thus engaging in "trade or commerce." See Linthicum v. Archambault, 379 Mass. 381, 387 (1979). See also Begelfer v. Najarian, 381 Mass. 177, 190-191 (1980); Lynn v. Nashawaty, 12 Mass. App. Ct. 310, 313-314 (1981) (identifying and defining a "business context" test to determine whether a particular transaction constitutes trade or commerce under Section 11). The evidence also warranted a finding that Gerstein's deceit constituted unfair or deceptive conduct proscribed by the act. [Note 22] We conclude that the c. 93A claim should have been considered on its merits.

4. We reach the plaintiffs' argument that, under the doctrine of partnership by estoppel, Weiner is liable to the same extent as Gerstein. [Note 23]

The common law doctrine of partnership by estoppel is codified for the Commonwealth in G. L. c. 108A, Section 16. See Standard Oil Co. v. Henderson, 265 Mass. 322, 326 (1928). The Henderson case establishes that to prevail under this doctrine a plaintiff must prove: (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. Ibid. See also Reuschlein & Gregory, Agency and Partnership Section 198 (1979); Crane & Bromberg, Partnership Section 36 (1968); Rowley on Partnership 423-436 (2d ed. 1960); Painter, Partnership by Estoppel 16 Vand. L. Rev. 327 (1963). Failure to establish any of these requirements precludes recovery on an estoppel theory.

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In setting aside the verdict against Weiner, the judge concluded that the evidence was insufficient to satisfy the second requirement, viz., that any holding out was done directly by Weiner or with his consent. On this issue, there was evidence that on October 16, 1972, the Browns had made a check payable to "Gerstein and Weiner" (apparently for legal services unrelated to the instant case) which was deposited in "Gerstein and Weiner clients' account"; that in 1975, in connection with the pending foreclosure, the plaintiffs made out a retainer check in the amount of $150 payable to Gerstein alone; that the plaintiffs thereafter received letters from Gerstein on stationery bearing the legend "Gerstein and Weiner;" and that Gerstein testified in his deposition that Weiner knew that he (Gerstein) was using Gerstein and Weiner stationery. There was no evidence that the plaintiffs ever met Weiner or that Weiner rendered any legal services on their behalf.

The judge's conclusion was correct. The evidence concerning the 1972 check and the account in which it was deposited is irrelevant to establish consent in connection with the 1975 transactions before us. It is of significance that the 1975 retainer check was made payable to Gerstein alone. Hence the plaintiffs' proof on consent came down to Weiner's knowledge that his name was being used on the office stationery. The Henderson decision (at 326) establishes, however, that the use of a person's name in a business, even with that person's knowledge, is too slender a thread to warrant a favorable finding on the consent element. See also Joseph v. Greater New Guide Baptist Church, Inc., 194 So.2d 127, 130 (La. App. 1966). See generally Mallen & Levit, Legal Malpractice Section 33 (2d ed. 1981). Weiner was entitled to judgment in his favor.

5. Two issues that may arise upon retrial may be disposed of summarily.

(a) Although the attorney-client relationship is essentially contractual in nature, the claims to be retried (deceit and c. 93A) basically sound in tort. Consequently, if the plaintiffs prevail after retrial, interest on any sum recovered should be computed in accordance with G. L. c. 231, Section 6B.

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(b) Retrial of the case will follow the usual judicial assignment procedures in the Superior Court.

6. To sum up: There is to be a new trial limited to (a) whether Gerstein's conduct constituted deceit which prevented the plaintiffs from paying the bank's mortgage in full and (b) whether Gerstein's deceit violated G. L. c. 93A, Sections 2(a) and 11. On the balance of the claims against Gerstein, the plaintiffs have failed in their proof, as they also have on their claim of derivative liability on Weiner's part.

The judgment insofar as it disposes of the claims against the defendant Gerstein except those identified above is affirmed. The balance of the judgment for Gerstein is reversed and a new trial ordered consistent with this opinion. The judgment insofar as it relates to the defendant Weiner is affirmed.

So ordered.


[Note 1] His wife, Ann E. Brown.

[Note 2] Robert E. Weiner.

[Note 3] The motion, despite its label, was a motion filed under Mass.R.Civ.P. 41(b)(2), 365 Mass. 804 (1974). The judge's allowance of the motion appears to have been based on a ruling that the attorney-client relationship between the plaintiffs and Gerstein was not, as matter of law, within the scope of G. L. c. 93A. This aspect of the case is discussed in part 3 of this opinion.

[Note 4] We recount here the facts that the jury could have found against Gerstein, leaving until later the evidence pertinent to the claims against Weiner.

[Note 5] These difficulties stemmed principally from a disagreement with Richdale over the parties' respective obligations under the lease. Richdale had paid a one-third share of the fuel bills owed by the Browns and deducted that amount from rent due under the lease. Richdale also made extensive repairs to the leased property and deducted the cost of the repairs from the rent, claiming that the plaintiffs had wrongfully refused, after notice, to make the repairs. The rent had been assigned to the bank as collateral security for the mortgage. The plaintiffs claimed that Richdale's diversion of the rent caused the default in the mortgage payments.

[Note 6] At this time, the plaintiffs paid Gerstein a retainer by check and agreed with him that they would be billed periodically at a stipulated hourly rate for his services.

[Note 7] On July 14, 1975, the plaintiffs had received a copy of an original complaint prepared by Gerstein. After reviewing this complaint, the plaintiffs suggested some minor corrections and returned it to Gerstein for redrafting.

[Note 8] On September 2, 1975, Gerstein telephoned the bank's attorney, who had previously stated to Gerstein that the bank did not prefer to foreclose and that it would not have to do so if the plaintiffs were able to sell the property and pay off the mortgage. Gerstein represented to the bank's counsel that a purchase and sale agreement had been executed to sell the property for $85,000, that he was holding a $5,000 deposit, and that a separate side agreement had been executed by the plaintiffs and the purchaser for the sale of the fixtures. The bank's attorney told Gerstein to deliver a copy of the purchase and sale agreement to him and indicated that he would consider postponing the next day's foreclosure sale if everything appeared in order. On the morning of September 3, 1975, Gerstein delivered an unsigned purchase and sale agreement to this lawyer's office and a hand-written note stating, "I am holding the $5,000 deposit." On investigation, counsel for the bank learned that no purchase and sale agreement had been signed and that Gerstein's representations were false. The foreclosure sale went forward as scheduled.

[Note 9] The amended complaint prepared by Gerstein did not contain an express allegation that the plaintiffs had the money to pay the mortgage but did aver that "[w]hen the [p]laintiffs finally ascertained the status of their account and the amount of the deficiency, it became too late for them to pay the amount due."

[Note 10] More specifically, Brown testified that Gerstein did not advise the plaintiffs that they could: (a) refinance the debt with another bank, (b) discharge the mortgage by payment of the balance due on the note, (c) reinstate the mortgage by payment of the arrearages, or (d) apply for an injunction on a theory of law other than one of those stated in the amended complaint.

[Note 11] The alternate theory of law relied upon by the plaintiffs concerns the application of G. L. c. 244, Section 22. They maintain that this statute permitted them to obtain an injunction stopping the foreclosure as matter of right. They contend that Gerstein was negligent in not bringing this statute to their attention or using it to enjoin the sale. They also claim that if they had discharged Gerstein and retained another lawyer, their new counsel would have invoked the statute to obtain an injunction. The judge refused to take judicial notice of the statute or to advise the jury of its provisions.

[Note 12] There was evidence that the arrearages as of April 18, 1975, totaled $1,636.85, and on the date of the sale (September 3, 1975), totaled $5,127.35. The principal due on the mortgage on September 3, 1975, was approximately $58,000. Over the plaintiffs' objection, the judge excluded deposition testimony of the deceased chief mortgage officer of the bank that the bank would have accepted payment of the arrearages and reinstated the mortgage.

[Note 13] Objections to questions by the plaintiffs' counsel which were aimed at eliciting such opinions from the lawyer for the bank were properly sustained (if for no other reason) for lack of qualification of this lawyer as an expert and because the questioning on the subject exceeded the limit of permissible redirect examination.

[Note 14] There is no merit to the defendant's contention that the plaintiffs never pleaded or tried a deceit claim. Paragraph 12 of the amended complaint bespeaks this claim, and the record leaves no doubt that the plaintiffs' evidence raised the theory. Moreover, the plaintiffs requested jury instructions on deceit. It was the judge's obligation to instruct the jury correctly on the general principles of law applicable to the pleadings and evidence in the case. The parties' skirmishing over whether "fraud" was involved is beside the point. In the context of this case, the concepts of fraud and deceit are interchangeable. See Nei v. Burley, 388 Mass. 307, 310 (1983).

[Note 15] There was no evidence that the bank's board of investment would have allowed the Browns to cure the default and continue payments in the future. The testimony of the bank's chief mortgage officer, see note 12, supra, that the bank would have accepted payment of the arrearages was properly excluded since there was no evidence that he was authorized, either expressly or impliedly, to take action contrary to the decisions of the board of investment. See Kanavos v. Hancock Bk. & Trust Co., 14 Mass. App. Ct. 326, 331 (1982); Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254-255 (1983).

[Note 16] There was no evidence that that it was probable that a sale or remortgage could have been successfully consummated in the short period facing the plaintiffs. The fact that the plaintiffs had negotiated a remortgage with the bank after they had defaulted on a previous mortgage with another bank would not support an inference that sale or remortgage was a likely prospect. This is particularly so in view of the plaintiffs' debts and other encumbrances on the property. The plaintiffs' evidence on the issue thus assumed the success of their goals and did not warrant the several inferences they now urge "based on probabilities rather than possibilites." Alholm v. Wareham, 371 Mass. 621, 627 (1976). See Poirier v. Plymouth, 374 Mass. 206, 212 (1978).

[Note 17] In addition to the payment of a $3,500 deposit, the foreclosure sale was made subject to other terms to be announced at the sale. The record contains no evidence as to what these terms were and no evidence that the plaintiffs could have complied with them. Their proof on this issue is therefore subject to the same infirmity discussed in note 16, supra.

[Note 18] The evidence was not sufficient to warrant a finding that the plaintiffs could have withdrawn funds from the smaller personal trust to pay the indebtedness in full since there was no evidence that the trustees of that trust would have exercised their discretion to permit the withdrawal of principal which was not enough in any event to satisfy the whole indebtedness. There also was no evidence that the plaintiffs could have successfully remortgaged their home within the applicable time constraints.

[Note 19] The defendants argue that the Browns cannot recover for deceit because of the doctrine of "judicial estoppel". This argument is based on the assertion that the plaintiffs swore to a complaint, prepared by Gerstein's associate after the foreclosure sale, which states that the plaintiffs were, at the time of the sale, "financially unable to purchase the . . . property"; an assertion at odds with their trial testimony. We are not persuaded by the argument.

While the doctrine of judicial estoppel has been recognized in various contexts by the Federal courts, see Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933); Hazel-Atlas Co. v. Hartford Empire Co., 322 U.S. 238 (1944); Yeo v. Cohen, 6 F.2d 411 (D. Mass. 1925); Hurd v. DiMento & Sullivan, 440 F.2d 1322 (1st Cir.), cert. denied, 404 U.S. 862 (1971); Duplan Corp. v. Deering Milliken Inc., 397 F. Supp. 1146 (D.S.C. 1974); see generally 1B Moore's Federal Practice par. 0.405[8] (2d ed. 1983), it has not yet been expressly recognized or defined by the courts of this Commonwealth. Compare G. L. c. 231, Section 87 (which renders allegations of fact made in pleadings actually filed in court judicial admissions of the party making them). Even if we were to recognize the doctrine, its application would be inappropriate here. The complaint which is intended to serve as the foundation for an estoppel was never filed in court or otherwise made a part of any court proceedings. We conclude that the statement asserted to create an estoppel constitutes no more than an evidentiary admission by the plaintiffs, the weight of which may be affected by testimony explaining the circumstances under which it was made or contradicting the fact sought to be established. See Stockbridge v. Mixer, 227 Mass. 501, 512 (1917); Jordan v. MacMelville, 342 Mass. 478, 480 (1961). We note testimony by Richard Brown that he did not instruct anyone to insert the paragraph in the complaint, that he had nothing to do with the statement, and that it was inserted at Gerstein's behest.

The defendants also make a vague argument that the plaintiffs are precluded because they never advised Gerstein that they had the financial ability to pay off the mortgage. Assuming the point would have relevance, there was no testimony to support the alleged fact.

[Note 20] The Guenard case was decided after the trial of this case.

[Note 21] Section 11 of c. 93A, unlike Section 9, requires that the plaintiff also be a "person who engages in . . . trade or commerce." Section 11 does not require a demand letter as a prerequisite to suit.

[Note 22] We reject the defendants' contention that the Guenard case should be distinguished on the basis that it involves a violation of ethical rules, hence a more serious infraction than the deceit complained of here. As previously noted, deceit also violates a lawyer's ethical duty.

[Note 23] There was no evidence that Gerstein and Weiner were members of an actual partnership.