Fergus v. Ross (Lawyers Weekly No. 10-127-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us SJC-12231 JOSEPH FERGUS vs. STEVEN A. ROSS.[1] Suffolk. April 4, 2017. – August 2, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Agency, Scope of authority or employment. Attorney at Law, Attorney-client relationship. Civil action commenced in the Superior Court Department on August 31, 2010. The case was heard by Frances A. McIntyre, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Arnold E. Cohen for the defendant. Gordon E. Feener (Danielle F. Wehrli also present) for the plaintiff. LOWY, J. In a jury-waived trial, a Superior Court judge determined that the defendant, Attorney Steven A. Ross, was negligent for his part in financing a real estate loan to the plaintiff, Joseph Fergus. The judge found that the defendant had conferred apparent authority on an individual, Bernard Laverty, Jr., to act as his agent for the loan. In the course of arranging the loan, unbeknownst to the defendant, Laverty asked the plaintiff to use a portion of the loan from the defendant to make a secured “side loan” to Laverty. The plaintiff agreed. Ultimately, however, the side loan was unsecured and Laverty defaulted. Relying on the rule that imputes the knowledge of an agent to the principal, the judge found that the defendant was negligent for failing to inform the plaintiff prior to the closing that the side loan was not secured. We now reverse, concluding that the facts found by the trial judge failed to establish that Laverty had the apparent authority to bind the defendant with respect to the side loan. Background. The judge made the following factual findings, which the parties do not dispute on appeal. The plaintiff, a regular purchaser and seller of real estate, needed between $ 75,000 and $ 100,000 to complete renovations of a property in the Dorchester section of Boston. Unable to acquire conventional financing for the project, he inquired about private financing through a mortgage broker, who referred the plaintiff to Laverty. Laverty had an existing relationship with the defendant, who operated a private lending operation through his law firm. Laverty had received five or six loans from the defendant and had previously referred potential borrowers to the defendant. Laverty informed the […]
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; SJCReporter@sjc.state.ma.us 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 […]