In Brissette v. Ryan, 2013 Mass. LEXIS 994 (November 29, 2013), the Appeals Court reversed a jury award to the plaintiff for $100,000 for a malpractice claim where the defendant attorney advised the plaintiff and her husband to transfer their home to their children without retaining a life estate in order to avoid healthcare liens, stating that the life estate would subject the property to healthcare liens. The defendant attorney was unaware that the law had changed a few years earlier to permit transferors to retain a life estate without subjecting the property to healthcare liens. When the plaintiff discovered the mistake she hired an attorney to reform the deed in the probate court, although the plaintiff’s son opposed the probate court proceeding and that proceeding was ultimately dismissed, leading the plaintiff to file a malpractice claim against the defendant.
After the jury verdict, the defendant filed a Motion for Judgment Notwithstanding the Verdict and a Motion for New Trial. The defendant challenged the verdict as being against the weight of the evidence and argued that the jury award was improperly grounded in sympathy and speculative damages. The Court agreed finding that the plaintiff did not incur any actual damages.
Despite the plaintiff’s claim that due to the defendant’s advice, she now owns nothing when she could have owned a life estate, the Court held that the loss of rights alone is not sufficient without proof of actual damages. The plaintiff did not testify that she had any plans to mortgage or rent the house and the plaintiff’s children never tried or threatened to evict her.
The Court felt that the jury likely felt sympathy for the plaintiff in awarding her $100,000 because the amount was speculative and there was no basis for that amount in the evidence. The plaintiff had not even presented any evidence for out-of-pocket expenses, such as attorney fees. The Court held that the plaintiff’s unease that her children might someday evict her, despite their testimony that they would never do that, and the fact that she did not show any actual damages, did not amount to an exceptional circumstance to warrant emotional distress damages.
The Court held that there were no set of circumstances which it may be reasonably inferred that the plaintiff suffered or will likely suffer damages due to the defendant’s legal representation.