Posts tagged "1106616"

Fergus v. Ross (Lawyers Weekly No. 11-066-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   15-P-310                                        Appeals Court   JOSEPH FERGUS  vs.  STEVEN A. ROSS.[1] No. 15-P-310. Suffolk.     January 21, 2016. – June 9, 2016.   Present:  Green, Wolohojian, & Henry, JJ.     Agency, Scope of authority or employment.     Civil action commenced in the Superior Court Department on August 31, 2010.   The case was heard by Frances A. McIntyre, J.     Arnold E. Cohen for the defendant. Gordon E. Feener for the plaintiff.     WOLOHOJIAN, J.  We consider here a principal’s liability to a third party for the conduct and representations of his agent in the context of a private lending transaction.  Following a bench trial, a judge of the Superior Court concluded that Steven A. Ross, individually, was bound by promises Bernard Laverty, Jr., made to Joseph Fergus because Laverty was Ross’s agent and acted within the scope of his apparent authority.  Judgment accordingly entered against Ross, individually.  The central issue on appeal is whether the judge erred in concluding Laverty had apparent authority to bind Ross to act as closing agent on a side loan about which Ross did not have actual knowledge.  We affirm. Background.  We summarize the judge’s findings, which we must accept unless clearly erroneous.  See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014).  “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”  J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).  Where there are two permissible views of the evidence, a judge’s finding adopting one view is not clearly erroneous.  See Pehoviak v. Deutsche Bank Natl. Trust Co., 85 Mass. App. Ct. 56, 65 (2014).[2] Fergus, a middle-aged man with an eighth grade education, is a public insurance adjuster also in the business of rebuilding damaged residential properties he comes across in his insurance work.  Fergus is savvy and smart, but he is not sophisticated about financial matters or perfecting security interests.  He had previously bought and sold several residential properties, financing them through conventional lenders.  Before the facts giving rise to this case, Fergus had never dealt with a private lender. In the summer of 2007, Fergus required between $ 75,000 and […]


Posted by Massachusetts Legal Resources - June 9, 2016 at 4:32 pm

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