# Petition for Writ of Certiorari — Poly v. Cargill > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1948%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 519 U.S. 1114 ## Text PiL&D ) ge 94:0 DE 10 19% No. oc pase Qs WE CLERK IN THE Supreme Court of the Anited States October Term, 1996 it GEORGE P. POLY AND MAUREEN S. POLY, jf Petitioners, THOMAS E. CARGILL, JR. D/B/a CARGILL ASSOCIATES AND MICHAEL T. MOYLAN, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS PETITION FOR WRIT OF CERTIORARI RONALD I. BELL* *Counsel of Record and Counsel for Petitioners ScoTTt A. BELL Counsel for Petitioners BERNSTEIN & BELL 4 Courthouse Lane Chelmsford, MA 01824 (508) 458-6339 BATEMAN & SLADE. INC BOSTON. MASSACHUSETTS cl aN “ae nthe’. Cte eae i QUESTION PRESENTED FOR REVIEW When government officials wrongfully interfere with a par- ent’s fundamental right to a relationship with his/her children, exacerbated by their failure to provide the parent with the procedural protections afforded by the Due Process Clause of the Fifth Amendment to the United States Constitution, does the discretionary function exception under the Federal Torts Claims Act immunize the government from liability for such wrongful interference? ii PARTIES TO THE PROCEEDINGS The Petitioners in this action, Plaintiffs below, are George P. Poly (“Poly”) and his wife, Maureen S. Poly (collectively “Plaintiffs”), who sued Respondents, Defendants below, Thomas E. Cargill, d/b/a Cargill Associates (“Cargill”) and Michael T. Moylan (“Moylan”) (collectively “Defendants”), for legal malpractice. The “underlying lawsuit” in the legal malpractice case was filed by Moylan on behalf of Poly against Poly’s ex-wife, Janet C. Gillis (“J. Gillis”), and her second husband, Air Force Sergeant Earl G. Gillis (“Sgt. Gillis”), and jointly against the United States of America (“USA”) under the Federal Torts Claims Act (“FTCA”) for wrongful actions by various members of the United States Air Force (“USAF” and/or “government’”), including Sgt. Gillis. TABLE OF CONTENTS Question Presented for Review Parties to the Proceedings Table of Authorities Cases Statutes and Other Authorities Opinions and Petition for Rehearing Below Jurisdiction Constitutional Provision Involved Statutory Provisions Involved Statement of the Case A. E. Introduction B. How the Federal Question Was Presented C. D. Verdict for Poly and Post-Trial Proceedings in the Evidence Presented at Trial Trial Court Appeal of Judgment NOV to the SJC Reasons for Granting the Petition WHERE THE DECISION OF THE HIGHEST COURT IN MASSACHUSETTS HOLDS THAT THE DISCRETION- ARY FUNCTION EXCEPTION UNDER THE FEDERAL Torts CLaims ACT IMMUNIZES THE GOVERN- MENT FROM LIABILITY FOR WRONGFULLY INTER- FERING WITH A PARENT'S FUNDAMENTAL LIBER- TY INTEREST IN MAINTAINING A RELATIONSHIP WITH His CHILDREN, AND For ABRIDGING THE PARENT’S CONSTITUTIONAL RIGHTS By FAILING TO PROvIDE Him WITH NOTICE AND AN Oppor- TUNITY TO BE HEARD AS REQUIRED By THE DUE iv iV Ann & & WN ND — 12 iV TABLE OF CONTENTS (CONT’D.) PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, THAT Decision Must BE REVERSED. 12 A. The SJC’s Opinion Is In Direct Conflict With Decisions of the Supreme Court of the United States and Other Circuit Courts of Appeals. 12 B. A Definitive Pronouncement By the Supreme Court of the United States On the Question Presented Is Important to All Parents. 16 C. The SJC’s Opinion Unjustifiably Ignores and Omits Material Facts and Relevant Law and Is So Shockingly Erroneous and Devoid of Evi- dentiary Support That It Must Be Reversed As a Gross Miscarriage of Justice. 17 Conclusion 20 TABLE OF AUTHORITIES CASES Adoption of Eugene, 415 Mass. 431, 614 N.E.2d 645 (1993) 20n Anderson v. Creighton, 483 U.S. 635 (1987) 12 Berkovitz v. United States, 486 U.S. 531 (1988) 14n, 19 Franz v. United States, 707 F.2d 582 (D.C. Cir. 1983), supp. op., 712 F.2d 1428 (D.C. Cir. 1983), on remand, 591 F. Supp. 374 (D.D.C. 1984) 15, 16, 18 Grigalauskas v. United States, 103 F. Supp. 543 (D. Mass.), aff'd, 195 F.2d 494 (Ist Cir. 1951) 14n Harlow v. Fitzgerald, 457 U.S. 800 (1982) 12 v TABLE OF AUTHORITIES (CONT’D.) Harry Stoller & Co. v. City of Lowell, 412 Mass. 139, 587 N.E.2d 780 (1992) 20n Horta v. Sullivan, 418 Mass. 615, 638 N.E.2d 33 (1994) 20n Meyer v. Nebraska, 262 U.S. 390 (1923) 13, 18 Moore v. City of East Cleveland, 431 U.S.494(1977) 13, 18 Murphy v.1.S.K.Con of New England, Inc. , 409 Mass. 842, 571 N.E.2d 340 (1991) 20n Pooler v. United States, 787 F.2d 868 (3d Cir.), cert. denied, 479 U.S. 849 (1986) 12, 18 Prince v. Massachusetts, 321 U.S. 158 (1944) 13, 18 Prisco v. Talty, 993 F.2d 21 (3d Cir. 1993) 14, 16, 18 Prisco v. United States Dept. of Justice, 851 F.2d 93 (3d Cir. 1988), cert. denied, 490 U.S. 1089 (1989) 14, 16, 18 Quilloin v. Walcott, 434 U.S. 246 (1978) 13, 18 Ruffalo v. Civiletti, 702 F.2d 710 (8th Cir. 1983), on remand, 565 F. Supp. 34 (W.D. Mo. 1983), later proceeding sub. nom. Ruffalo v. United States, 590 F. Supp. 706 (W.D. Mo. 1984) 15, 16, 18 Salmeron v. United States, 724 F.2d 1357 (9th Cir. 1983) 15, 16, 18 Santosky v. Kramer, 455 U.S. 745 (1982) 18 Stanley v. Illinois, 405 U.S. 645 (1972) 13, 18 United States v. Gaubert, 499 U.S. 315 (1991) 17, 19 United States Fidelity & Guaranty Co. v. United States, 837 F.2d 116 (3d Cir.), cert. denied, 487 U.S. 1235 (1988) : 12 vi TABLE OF AUTHORITIES (CONT’D.) STATUTES AND OTHER AUTHORITIES U.S. Const. amend. V passim U.S. Const. amend. XIV, § | 10n 28 U.S.C. § 1257(a) 2 28 U.S.C. § 1346(b) 3 28 U.S.C. §§ 2671, et seq. (“Federal Torts Claims Act”) passim M.G.L. Const. pt. 1, art. XXIX 10n M.G.L. c. 93A 9n Restatement (Second) of Torts § 700 (1977) 13n Restatement (Second) of Torts § 876(a) and (b) (1979) 13n No. IN THE Supreme Court of the Ginited States October Term, 1996 GEORGE P. POLY AND MAUREEN S. POLY, ‘ Petitioners, THOMAS E. CARGILL, JR. D/B/a CARGILL ASSOCIATES AND MICHAEL T. MOYLAN, Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS PETITION FOR WRIT OF CERTIORARI Petitioners, George P. Poly and Maureen S. Poly, respectfully pray that a writ of certiorari issue to review the decision entered by the Supreme Judicial Court of the Commonwealth of Massa- chusetts on July 11, 1996. OPINIONS AND PETITION FOR REHEARING BELOW The denial of the Petition for Rehearing by the Supreme Judicial Court of the Commonwealth of Massachusetts (“SJC”) on Sep- 2 tember | 1, 1996, is attached as Appendix A. The Petition for Rehearing dated July 25, 1996, is attached as Appendix B. The Opinion of the Supreme Judicial Court of the Common- wealth of Massachusetts in George Poly & another v. Michael T. Moylan & others, 423 Mass. 141, 667 N.E.2d 250 (1996), is attached as Appendix C. The Ruling on Moylan’s Motion for Judgment Notwithstanding the Verdicts (“Ruling”) of the Superior Court of the Commonwealth of Massachusetts on July 23, 1994, Civil Action No. 91-2299, is attached as Appen- dix D. JURISDICTION On July 11, 1996, the SJC affirmed the Ruling of the Superior Court, dated 23 1994, with respect to Judgment NOV on the legal malpractice count. See Appendices C and D, respectively. On July 25, 1996, a Petition for Rehearing was timely filed and was denied on September 11, 1996. See Ap- pendices B and A, respectively. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). CONSTITUTIONAL PROVISION INVOLVED This case involves Poly’s fundamental liberty interest as a natural parent to a parent-child relationship, which right is protected under the Due Process Clause of the Fifth Amend- ment to the Constitution: “No person shall be . . . deprived of life, liberty, or proper- ty, without due process of law... .” U.S. Const. amend. V. RT ew 3 STATUTORY PROVISIONS INVOLVED The statutory provisions involved are 28 U.S.C. § 1346(b) and 28 U.S.C. §§2671 et seq.: Subject to the provisions of . . . 28 U.S.C. § 2671 et seq., the district courts . . . shall have exclusive jurisdic- tion of civil actions on claims against the United States, for money damages . . . for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b) (1977); “Employee of the government” includes . . . members of the military. . . .; “Acting within the scope of his office or employment,” in the case of a member of the military . . . means acting in line of duty. 28 U.S.C. § 2671 (1977); The United States shall be liable, respecting the provi- sions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances. .. . 28 U.S.C. § 2674 (1977); The provisions of the [FTCA] . . . shall not apply to— 4 (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a) (1977) (the discretionary function excep- tion (“dfe’)) STATEMENT OF THE CASE A. Introduction This is a legal malpractice case with additional counts for misrepresentation and deceit, unfair or deceptive acts or practices and loss of consortium, brought by Plaintiffs against two lawyers, Defendants Cargill and Moylan. The “underlying lawsuit” in this legal malpractice case was filed by Moylan on behalf of Poly against Poly’s ex-wife, J. Gillis, and her second husband, Sgt. Gillis, and jointly against the USA under the FTCA for wrongful actions by various members of the USAF, including Sgt. Gillis, which violated Poly’s constitutionally protected right to a relationship with his children (“1985 Complaint”). Specifically, the 1985 Com- plaint alleged that while acting within the scope of their em- ployment, members of the USAF, including Sgt. Gillis, wrong- fully assisted J. Gillis (not a member of the USAF), in taking and keeping Poly’s two sons, Christopher M. Poly and Stephen G. Poly (“children”), from Poly in violation of his custodial rights. a hi rer 5 In the malpractice case, Plaintiffs alleged, among other things, that Moylan’s negligence both before and while he was employed by Cargill, resulted in the dismissal of the 1985 Complaint, and that Moylan did not tell Poly of the dismissal and misrepresented the status of the case to Poly for years. After the trial of the malpractice case, the jury returned a verdict for Poly finding, in relevant part, that Moylan had committed legal malpractice in allowing the 1985 Complaint against the government and the Gillises to be dismissed,' that Moylan had knowingly misrepresented material facts to Poly in handling his case,? and, most importantly, that Poly would have won the case against the government and the Gillises but for Moylan’s negligence.’ The jury’s verdict, together with interest, amounted to over $260,000. B. How The Federal Question Was Presented As early as Plaintiffs’ Opposition to Defendants’ Motions for Summary Judgment, and continuing throughout trial and ‘After filing the 1985 Complaint, Moylan did nothing in the case. When the government filed a Motion to Dismiss, arguing that all of the actions of the USAF took place in Germany, and thus, the USAF was immune from liability by the foreign country exception under the FTCA, Moylan never opposed the government's Motion by advancing available arguments, or amending the Complaint, to highlight the wrongful actions of the USAF in the United States. Not surprisingly, presented with an unopposed Motion, the Federal District Court dismissed the 1985 Complaint against the government, specifically noting on the Motion that “no opposition” had been submitted. “Among other things, Moylan never discussed the government's Motion to Dismiss with Poly and unilaterally decided not to oppose it. For years, Moylan continually misrepresented the status of the case to Poly, who believed his case was still alive and pending until 1991. ‘For reasons attributable to other errors by the trial judge, the jury found, in response to one narrowly framed question regarding Cargill's liability, that Moylan's employer did not have control over Moylan’s work with respect to the underlying Poly case, and thus could not be held liable and, with respect to Poly’s second wife, Maureen S. Poly, that she had suffered no loss of consortium. 6 on appeal to the SJC, Plaintiffs argued, both verbally and in writing, that the government was not immunized from liability by the dfe under the FTCA, where government officials’ ac- tions wrongfully interfered with Poly’s constitutionally pro- tected right to a parent-child relationship. C. Evidence Presented At Trial During the trial, evidence regarding the underlying lawsuit, which, given the jury verdict for Poly, must be taken in the light most favorable to Plaintiffs, was introduced, showing, among other things, that: (1) at a hearing on April 9, 1979, with Poly’s ex-wife, J. Gillis, and her second husband, Sgt. Gillis, present, a Massachusetts probate court judge entered an order forbidding J. Gillis from removing Poly’s children, ages 9 and 10, from the state (“restraining order”); (2) on April 12, 1996, J. Gillis wrote to Poly informing him of her intention to take the children out of the country to Sgt. Gillis’s new duty station in violation of the restraining order; (3) on April 13, 1979, the probate court judge entered an order awarding custody of the children to Poly (“custody order”); (4) Poly immediately notified USAF officials of the custody order and by April 18, 1979, USAF officials had received copies of both court orders, putting the USAF on notice, both verbally and in writing, of Poly’s parental rights; (5) on or about April 20, 1979, the USAF transferred Sgt. Gillis out of the United States to a new duty station in Germany; (6) during April, 1979, the USAF was also notified of the court orders and of Poly’s parental rights by Poly’s divorce attorney; (7) in April, 1979, Poly received no information from the USAF as to the specific whereabouts of his chiidren or J. Gillis, as he questioned USAF authorities and searched frantically for his children; (8) in fact, in April, 1979, USAF officials told Poly that J. Gillis and the children were already out of the country and that there was noth- 7 ing the USAF could do for him; (9) from April, 1979 to June, 1979, however, J. Gillis and the children were still in the United States and, in preparation for their transportation over- seas, the USAF examined the children medically and took their passport photographs; (10) in June, 1979, two months after having been put on notice of Poly’s parental rights, the USAF transported J. Gillis (a civilian) and the two children (not dependents of Sgt. Gillis) out of the United States to join Sgt. Gillis in Germany;* (11) from April, 1979 to June, 1979, USAF officials did not investigate the matter and failed to afford Poly notice and a hearing before transporting J. Gillis and Poly’s children out of the United States, effectively ter- minating Poly’s parental rights;* (12) in 1980, the USAF was also notified that a criminal arrest warrant for kidnapping had been issued for J. Gillis; (13) the maximum duration of an overseas tour of duty for an enlisted man in the USAF is typically no more than three years; (14) in disregard of the typical overseas tour length, in 1983 and in 1985, acting in the United States, USAF officials granted Sgt. Gillis’s two requests ‘Poly was unaware of the USAF officials’ wrongful assistance to his ex-wife in the United States during the period from April, 1979 to June, 1979. Poly did not learn of the delayed June, 1979 departure until August, 1984, through a letter to Poly from a Lt. Col. of the USAF. Untii 1984, Poly believed that the USAF had sent J. Gillis and the children overseas before Poly first notified the USAF on April 13, 1979 of his parental rights. Prior to 1984, any action brought by Poly against the USAF could have been dismissed as barred by the foreign country exception under the FTCA, because, given the facts as Poly then understood them, Poly could not, at that time, have alleged wrongful actions of the USAF in the United States. Where it was not until 1984 that Poly discovered the 1979 wrongful actions of the USAF in the United States, Poly’s 1985 Complaint was timely under the FTCA and was not subject to dismissal on statute of limitations grounds or under the foreign country exception to the FTCA. The jury so found. *Since Sgt. Gillis was already at his duty station overseas in April, 1979, any need of the USAF to have an enlisted person at his assigned duty station had been accomplished. The USAF had no similar need with respect to J. Gillis and the children which would justify ignoring the court orders and transporting J. Gillis and the children overseas two months later in June, 1979, severing Poly’s parental relationship with his children, especially without affording Poly notice and an opportunity to be heard. 8 to extend his tour of duty outside of the United States, thereby facilitating J. Gillis’s keeping Poly’s children out of the United States for over eight years;° (15) after Sgt. Gillis, J. Gillis and the children, ages 17 and 18, were finally returned to the United States in the summer of 1987, J. Gillis was found guilty of parental kidnapping and held in contempt of the probate court orders she had violated; and (16) by the time of the legal malpractice trial in 1994, Poly had managed to rekindle a relationship with his older son, Christopher, but still had no relationship with his younger son, Stephen. At trial, Plaintiffs’ military expert, a West Point graduate and a retired Lieutenant General in the USAF, with thirty-five years of experience both as an officer and as a commanding officer, testified that the USAF officials’ actions in this case were wrong, were not in the best interests of the country or the USAF, and were not in furtherance of any USAF policies. He testified further that, under the circumstances, as a reason- able USAF official, he would have stopped the transfer of the children and J. Gillis. Defendants’ expert, a former political appointee in the office of the Secretary of Defense, who was not a USAF officer with command experience, and who was not in the USAF in 1979, testified that the mandatory policy of the USAF in 1979 was not to get involved with, or take sides in, custody disputes, i.e., to remain neutral. Plaintiffs’ military expert testified that, in wrongfully assisting J. Gillis, the USAF officials did not remain neutral and, clearly, would not have been following the mandates of such a policy. “In April, 1984, Poly first learned that the USAF, acting in the United States, had approved a tour extension for Sgt. Gillis. In the face of increasing pressure from congressmen, law enforcement officials, and the media, among others, the USAF promised to return the Gillises to the United States in 1985. Nevertheless. in 1985, USAF officials at Headquarters in San Antonio, Texas, again approved Sgt. Gillis’s request to extend his tour overseas. 9 No evidence was ever introduced by Defendants to show that, under the circumstances, the USAF officials had discre- tion to ignore the restraining order and custody order and to transfer the children out of the United States. D. Verdict For Poly And Post-Trial Proceedings In The Trial Court On February 3, 1994, the jury in the legal malpractice case returned the verdict for Poly. Thereafter, Moylan filed a Motion for Judgment Notwithstanding the Verdict (“NOV”), which Plaintiffs opposed. On July 23, 1994, just before retiring, the trial judge allowed the Motion for Judgment NOV on the negligence count, thereby taking away Poly’s favorable jury verdict.’ The trial judge ruled that Moylan could not be held liable for malpractice because the underlying case against the USAF was unwinnable. In his ruling, the trial judge found that the actions of USAF officials were discretionary functions exempt from liability under the FTCA and that the USAF was merely carrying out the “neutrality policy” which was, as the trial judge viewed the evidence, the official USAF policy with respect to custody matters. See Appendix D. ’ The trial judge also substantially reduced the jury's damages award on the count for deceit from $10,000 to only a few hundred dollars, and awarded both Defendant lawyers their costs. Further, despite the evidence from which the jury found Moylan had made misrepresentations and had deceived Poly, by denying Plaintiffs’ Motion for a New Trial on the Ch. 93A count, the trial judge, who was openly biased in favor of Defendants throughout the trial, reaffirmed his earlier finding that both Defendants did not violate the chapter of the Massachusetts General Laws which proscribes unfair or deceptive acts or practices (M.G.L., Ch. 93A). The trial judge who heard all of the evidence, and who took away Poly’s jury verdict, retired before Plaintiffs’ could be heard on a Motion for a New Trial on the malpractice count and the misrepresentation and deceit count. Not surprisingly, another Superior Court judge, unfamiliar with the trial and the case, denied Plain- tiffs’ Motion for a New Trial. 10 E. Appeal Of Judgment NOV To The SJC On July 10, 1995, Plaintiffs filed an Application for Direct Appellate Review (“Application”) to the SJC, alleging, among other things, that (1) the trial judge erred in allowing Judgment NOV, (2) the trial judge erred in ruling that the USAF would not have been liable in the underlying case for wrongfully interfering with Poly’s constitutionally protected liberty in- terest in maintaining a relationship with his children, and (3) the trial judge’s biased conduct violated plaintiffs’ right to a fair and impartial trial." The SJC granted Plaintiffs’ Applica- tion. One year later, on July 11, 1996, the SJC affirmed the trial judge’s rulings that Cargill and Moylan had done nothing wrong and found that the dfe immunized the government from liability in the underlying case’ and, thus, neither lawyer could be found liable for malpractice.'° See Appendix C. “The trial judge's egregious conduct itself, which deprived Plaintiffs’ of their constitutional right to a fair and impartial trial, raises a separate question of denial of due process. M.G.L. Const. pt. 1, art. XXIX; U.S. Const. amend. XIV, § |. *Given the mandatory aspect of the so-called “neutrality policy” which would not support a finding that USAF officials had discretion to wrongfully interfere with Poly’s custodial rights, the SJC chose to disregard its significance in a footnote, even though the “neutrality policy” was the linchpin of the Defendant's dfe argument and the centerpiece of the trial judge's erroneous decision. Associate Justice Neil L. Lynch wrote the SJC decision in this case, which, despite the jury’s verdict finding that Moylan, while working for Cargill, had willfully and knowingly deceived Poly, also held that the trial judge was warranted in ruling that neither Moylan nor Cargill had committed any unfair or deceptive act or practice. Ironically, Judge Lynch is the same judge who disbarred Moylan in 1995 for negligent, unethical, and fraudulent actions in another case Moylan had handled during the same time frame he was representing Poly, which actions in that other case are remarkably similar, if not identical, to the negligent, unethical, and fraudulent actions of Moylan that Plaintiffs proved to the jury at trial. The effect on this case of Cargill’s prominence as a well known trial lawyer with a career spanning over forty years as a member of the Massachusetts Bar, is not fully known. What is known, and what is obvious from the trial transcript, is the bias and partiality of the trial judge throughout the trial in favor of the Defendants, especially Cargill. On July 25, 1996, Plaintiffs filed a Petition for Rehearing. See Appendix B. Plaintiffs argued, among other things, that the SJC had “overlooked and misapprehended” several key facts and points of law regarding the government officials’ actions, Poly’s constitutionally protected right to a relationship with his children, and the FTCA. Plaintiffs again asserted that, (1) taking all the facts in the light most favorable to Plaintiffs, the jury in Poly was warranted in finding that the conduct of USAF officials in the United States was negligent and/or wrongful under the FTCA, and (2) by ignoring the probate court orders, USAF officials in the United States had wrong- fully aided a civilian in the parental kidnapping of Poly’s two children and had facilitated the intentional interference with a father’s fundamental and constitutionally protected right to a relationship with his children for over eight years. On September 11, 1996, the SJC denied Plaintiffs’ Petition or Rehearing. See Appendix A. 12 REASONS FOR GRANTING THE PETITION I. WHERE THE DECISION OF THE HIGHEST COURT IN MASSA- CHUSETTS HOLDS THAT THE DISCRETIONARY FUNCTION EXCEPTION UNDER THE FEDERAL TORTS CLAIMS ACT IM- MUNIZES THE GOVERNMENT FROM LIABILITY FOR WRONG- FULLY INTERFERING WITH A PARENT’S FUNDAMENTAL LIBERTY INTEREST IN MAINTAINING A RELATIONSHIP WITH His CHILDREN, AND FoR ABRIDGING THE PARENT'S CONSTITUTIONAL RIGHTS By FAILING TO PROVIDE HIM WITH NOTICE AND AN OPPORTUNITY TO BE HEARD AS RE- QUIRED By THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, THAT DECISION Must BE REVERSED. A. The SJC’s Opinion Is In Direct Conflict With Deci- sions Of The Supreme Court Of The United States And Other Circuit Courts Of Appeals. The Supreme Court of the United States has held that gov- ernment officials’ conduct, even if discretionary, will not be shielded from liability by qualified immunity, if that conduct violates clearly established constitutional rights of which a reasonable person would have, or should have, known, i.e., the contours of that right are sufficiently clear that a reasonable official would understand that his actions will violate the con- stitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Anderson v. Creighton, 483 U.S. 635, 640 (1987). Similarly, circuit courts of appeals have held that government officials’ conduct cannot be discretionary if it violates the Con- stitution, because government officials do not possess discre- tion to violate constitutional rights. See Pooler v. United States, 787 F.2d 868, 871 (3d Cir.), cert denied, 479 U.S. 849 (1986)(“Pooler’); see also United States Fidelity & Guaranty Co. v. United States, 837 F. 2d 116, 120 (3d Cir.), cert denied, 487 U.S. 1235 (1988). ib Wt 06 ve hanetaesacutaly Mp TEA ROB ood rental oe a te eee) ee ee ISA tions on these damages, and justifies a multitude of legal errors by falling back on the misapprehended proposition that the case against the USAF was unwinnable. b. Loss of consortium claims. Both Polys went to Moylan for help. It was Moylan’s duty to advise both Polys of the causes of action available to them, one of which was a claim for loss of consortium. He breached his duty. Thus, Maureen Poly was not a party to the claim against the USAF and did not appear to be represented by Moylan in the lawsuit. But why reach to find for Moylan, when good practice is to advise a client of any claims that can be brought on behalf of his wife? c. Judicial bias. It is axiomatic that a different judge, who had not sat on a four (4) weeks long trial and who did not have the benefit of the trial transcript would not conclude on a motion for a new trial that the trial judge, a colleague, denied a party his constitutional right to a fair and impartial trial. To suggest that the different judge’s denial of a Motion for a New Trial, containing such an allegation, is any basis to conclude that there was no unfair bias and denial of the constitutional right to a fair trial is a mistake. Even a cursory reading of the trial transcript amply supports Plaintiffs’ claim. If every party, under such circumstances, moved for a mistrial, or disqualifi- cation or recusal of the judge, most, if not all, of those motions will be routinely denied, potentially exposing the moving party to increase bias and partiality of the judge. Moreover, there are legitimate time and economic concerns which must be considered before deciding to move to disqualify the trial judge and abort a lengthy trial in midstream. On the other hand, if the judge is the type of judge who is going to grant a motion to disqualify himself, more than likely he will also be 16A the type of judge who will respond properly to rectify the offending behavior when counsel respectfully points out to the judge that the judge is “killing” counsel’s client’s case. There is always that reasonable expectation and Plaintiff took that reasonable approach in this case, but without success. 4. Cargill The opinion concedes that Cargill was Moylan’s employ- er, but does not address the issues of respondent superior, apparent authority, or the trial judge’s manipulation of the evidence which resulted in the jury’s finding that Cargill did not have the right to control Moylan. The newly discovered private reprimand requires Moylan’s practice of law to be supervised at the Cargill law firm and identifies Cargill as Moylan’s employer, despite the Defendant lawyers’ misrepre- sentations throughout the case that Moylan was an independent contractor. The Reprimand emphasizes how unfair the trial judge’s manipulation of the employer-employee issue was. Obviously the trial judge who considered Plaintiffs’ Motions based on the newly discovered evidence, was not going to agree that the Reprimand invalidated the result which he orches- trated to absolve Cargill. The trial judge’s denials of the Mo- tions were pro forma. 5. Chapter 93A Before the trial judge elected to believe Moylan and to find that Moylan had done nothing unfair or deceptive, the trial judge was aware through post-trial pleadings of informa- tion consistent with the jury’s finding that Moylan had deceived Poly. In 1987, Moylan had stipulated to the BBO that he had: (1) forged the signature of another attorney to a check and stole money from the other lawyer; (2) in another matter; he missed the statute of limitations for filing a lawsuit and then kept that from his client; I7A (a) after missing the statute of limitations, he, neverthe- less filed a lawsuit and failed to serve it upon the defendants; (b) over the next three years, in response to inquiries from his clients about the status of his case, he lied to his client; (3) in yet another case, in which he had filed a suit on behalf of a different client, he failed to take any further action of record in the case; (a) for over three years when contacted by the client about the status of his case, he deceived his client; (b) when the client finally checked the court docket, the client discovered that the complaint Moylan had filed had never been served on the defendants in that case; and (c) that case was eventually dismissed for lack of prose- cution; and (4) ignored three letters from Bar Counsel, two of which were sent certified mail, return receipt requested (in addition to first class mail), and failed to respond to Bar Counsel’s inquiries until he was subpoenaed to the office of Bar Counsel. Those actions are similar to all of the actions of malpractice and fraud committed by Moylan in the Poly case. Through those same post-trial pleadings, on appeal, the SJC also knew of Moylan’s prior disciplinary record. Ironically, Judge Lynch, who wrote the 1996 appellate decision in Poly, holding that, despite the jury’s verdict finding that Moylan had willfully and knowingly deceived Poly, the trial judge was warranted in ruling that Moylan had not committed any unfair or deceptive act or practice, is the same judge who disbarred Moylan in 1995 for negligent, unethical, and fraudulent actions in another case Moylan had handled during the same time frame he was representing Poly, which actions in that other case are also remarkably similar, if not identical, to the negli- gent, unethical, and fraudulent actions of Moylan that Plaintiffs proved to the jury in their case. For convenience, a copy of the summary of evidence leading to Moylan’s disbarment in 1995 is attached. 18A Although a trial judge’s c. 93A findings may differ from a jury’s common law finding of fraud, given all of the foregoing, the trial judge’s decision and the SJC’s opinion are indefensible. D. Conclusion Based on all of the foregoing, Plaintiffs’ Petition For a Rehearing should be granted. Respectfully submitted, George P. Poly and Maureen S. Poly By Plaintiffs’ Attorneys Bernstein & Bell /s/ Ronald I. Bell BBO #036400 /s/ Scott A. Bell BBO #628944 cc: Laurence Field, Esq. Allen N. David, Esq. Attachment 19A COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY NO: BD-95-021 IN RE: MICHAEL T. MOYLAN ORDER This matter came before the Court, Lynch, J., presiding, on an Information filed on March 16, 1995. It is ORDERED that the respondent Michael T. Moylan shall be immediately disbarred from the practice of law in the Commonwealth of Massachusetts and his name is stricken from the roll of attorneys in the Commonwealth of Massachusetts. It is further ORDERED that Michael T. Moylan shall file with the office of Bar Counsel his affidavit of compliance with S.J.C. Rule 4:01, sec. 17 within thirty days after the effective date of this Order. By the Court, (Lynch, J.) /s/ Assistant Clerk Entered: May 22, 1995 20A IN RE: MICHAEL T. MOYLAN No. BD-95-021 SUMMARY ' On December 30, 1983, a fourteen-year-old boy was injured when the car in which he was a passenger collided with a bus. His father retained counsel to represent the boy’s claims against the driver of the car, the bus driver, and the owner of the bus company. In January 1984, counsel referred the personal injury case to the respendent, with the boy’s father’s consent. Neither original counsel nor the respondent had an executed contingent fee agreement in compliance with S.J.C. Rule 3:05. In June 1984, the respondent settled the claim against the driver of the car and the driver’s insurance company for $10,000.00. The respondent negotiated a compromise of the medical lien with Blue Cross/Blue Shield for $3,333.34. The respondent told the parents that the remaining money from the settlement would be deposited in an account for the child’s benefit pending resolution of the remaining claims. The respondent did not retain the settlement funds in an account for the child’s benefit. Instead, the respondent com- mingled the funds with his own and converted the funds to his own use. In December 1986, the respondent filed a civil complaint on behalf of the father and son against the bus company and the driver of the bus. The respondent failed to serve the defend- ants with the complaint and did no further work on the case. The father made inquiries about the status of the case in 1986 ‘Compiled by the Board of Bar Overseers based on the record submitted to the Supreme Judicial Court. 21A and 1987, to which the respondent falsely replied that the case was held up by a backlog in the court. In February 1992, the father asked the respondent for a copy of the complaint and the docket number. The respondent failed to provide this information. In March 1992, the father discov- ered on his own that the complaint had never been served on the defendants. In March 1992, the father hired successor counsel and dis- charged the respondent. The father demanded that the respon- dent return the file, provide an accounting, and refund the settlement funds. The respondent did not reply to this demand. After subsequent letters from successor counsel to the respon- dent requesting an accounting and the return of the file, the respondent told successor counsel that he had lost the file. The respondent never provided an accounting for a refund of the settlement funds. In May 1992, successor counsel served the defendants with the complaint filed by the respondent. Successor counsel asked the respondent to provide information demonstrating there was good cause for the failure to make service. The respondent did not reply to this request. The action was dismissed by the court for failure to effect timely service. Successor counsel, on behalf of his clients, filed a request for investigation with the Office of Bar Counsel. The respon- dent failed to cooperate with Bar Counsel’s investigation. The respondent received a private reprimand in 1987 for misconduct arising from three complaints similar to the instant matter. PR-87-23, 5 Mass. Att’y Disc. R. 515. The respondent’s conduct violated Canon One, Disciplinary Rule 1-102(A)(4) and (5) (prohibiting conduct involving dis- honesty, deceit and misrepresentation and conduct prejudicial to the administration of justice); Canon Two, Disciplinary Rule 2-106(C) (lawyer shall not enter in an arrangement for or charge a contingent fee without a written contingent fee agree- 22A ment) and Disciplinary Rule 2-110(A)(2) (discharged lawyer shall deliver to the client all papers and property to which the client is entitled); Canon Six, Disciplinary Rule 6-101(A)(3) (lawyer shall not neglect a legal matter); Canon Seven, Disci- plinary Rules 7-101(A)(1), (2) and (3) (failure to represent a client zealously, failure to carry out contract of employment, and prejudicing client during course of employment); Canon Nine, Disciplinary Rule 9-102(A) and (B) (failure to preserve identity of funds and property of client, failure to place in safe- keeping client’s property, failure to render accounts to client and failure to turn over to client his property); and SJC Rule 4:01 § 3 (lawyer required to respond to Bar Counsel's requests for information during course of investigation). The hearing committee, the appeal panel, and the Board of Bar Overseers recommend disbarment. The Board of Bar Over- seers filed an information recommending disbarment on March 15, 1995. On May 22, 1995, following argument by the parties, the Supreme Judicial Court for Suffolk County entered an order disbarring the respondent from the practice of law. 23A APPENDIX C Supreme Judicial Court for the Commonwealth of Massachusetts 1412 Courthouse, Boston, Massachusetts 02108 (617) 557-1020 Ronald I. Bell, Esquire Bernstein & Bell 4 Courthouse Lane Chelmsford, MA 01824 RE: No. SJC-07009 GEORGE POLY & another VS. MICHAEL T. MOYLAN & others NOTICE OF DECISION Enclosed please find a copy of the decision rendered by the court in the above-captioned case. Very truly yours, /s/ Jean M. Kennett, Clerk Dated: July 11, 1996 24A COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court for the Commonwealth at Boston, JULY 11, 1996 IN THE CASE NO. SJC-07009 GEORGE P. POLY vs. MICHAEL T. MOYLAN & others. pending in the Superior Court Department of the Trial Court for the County of Essex, No. 91-2299. ORDERED, that the following entry be made in the docket; viz., — The judgment notwithstanding the verdict on the malpractice claim is affirmed. The damages under the deceit claim are vacated, and the denial of damages under G.L. c. 93A is affirmed. BY THE COURT, /s/ , CLERK. July 11, 1996 SEE OPINION ON FILE. 25A SJC-07009 GEORGE P. POLY & another! vs. MICHAEL T. MOYLAN & others.” Essex. March 4, 1996. — July 11, 1996. Present: Liacos, C.J., Wilkins, Abrams, Lynch & Greaney, JJ. Practice, Civil, Judgment notwithstanding verdict, Judicial discretion, New trial. Attorney at Law, Malpractice, Negli- gence. Federal Tort Claims Act. Deceit. Negligence, Caus- ing loss of consortium. Jury and Jurors. C onstitutional Law, Fair trial. Consumer Protection Act, Unfair or deceptive act. Civil action commenced in the Superior Court Department on July 18, 1991. The case was tried before John P. Forte, J., sitting under statutory authority, and an amended motion for a new trial was heard by Joseph A. Grasso, Jr., J. The Supreme Judicial Court granted an application for direct appellate review. Ronald I. Bell (Scott A. Bell with him) for the plaintiffs. Allen N. David (Harvey Weiner with him) for Michael T. Moylan. Laurence Field for Thomas E. Cargill, Jr. ‘Maureen S. Poly. When we refer to a single plaintiff, we mean the principal plaintiff, George P. Poly. ? Thomas E. Cargill, Jr., and Cargill Associates. 26A LYNCH, J. This appeal arises in an action by George P. Poly (plaintiff) and Maureen S. Poly (plaintiff's wife) against the defendants because of their alleged improper handling of a prior action against the United States Air Force (USAF), the plaintiff's former wife, Janet C. Gillis, and her husband, Air Force Sergeant Earl J. Gillis. On appeal the plaintiff argues that: (1) the trial judge erred in allowing the defendants’ motion for judgment notwithstanding the verdict; (2) the judge erred in ruling that the USAF would not have been liable in the underlying tort claim; (3) the judge’s biased conduct violated the plaintiff's right to a fair and impartial trial; (4) he is entitled to a new trial because a newly discovered private reprimand by the Board of Bar Overseers confirms an employee relation- ship between Moylan and Cargill; and (5) the judge erroneously decided that the defendants had no liability under G.L. c. 93A (1994 ed.). 1. Procedural History. The plaintiff filed this action against his former lawyer, Michael T. Moylan, and Moylan’s employer during part of the period at issue, Thomas E. Cargill, Jr., and Cargill Associates. The complaint argued: (1) negli- gence and breach of contract; (2) misrepresentation and deceit; (3) unfair or deceptive acts or practices under G.L. c. 93A; and (4) the plaintiff's wife’s claimed loss of consortium. The case, except for the G.L. c. 93A count, was then tried before a jury, resulting in a verdict for the plaintiff. In response to special questions, the jury found that Moylan had been negligent, and had misrepresented material facts to the plain- tiff, and that the plaintiff would have prevailed both against the Gillises and the USAF. The jury also found that Cargill did not have control over Moylan in regard to the plaintiff's case and that the plaintiff's wife suffered no loss of consortium. The judge found that neither defendant had committed any unfair or deceptive act, and therefore dismissed the G.L. c. 93A claim and awarded both defendants their costs. 27A He then allowed Moylan’s motion for judgment notwith- standing the verdict on the malpractice count; reduced the damages from $10,000 to $295 on the misrepresentation and deceit count; and denied the plaintiff's motion for a new trial on the G.L. c. 93A count. Another Superior Court judge denied the plaintiffs’ motion for a new trial on the malpractice, mis- representation and deceit counts. The plaintiffs and Moylan cross appealed. We granted the plaintiffs’ application for direct appellate review. 2. The underlying tort claims. We summarize the evidence in the light most favorable to the plaintiff. As a result of a divorce, Janet Gillis, the plaintiff's former wife, was awarded custody of their two sons with the plaintiff having visitation rights. In 1979, Sgt. Earl Gillis, her then husband, was reas- signed from Pease Air Force Base in New Hampshire to Ram- stein Air Force Base in Germany. The USAF allowed Janet Gillis and the children to join Sgt. Gillis in Germany. On April 9, 1979, the plaintiff had obtained an order in the Middlesex Probate Court prohibiting Janet Gillis from remov- ing the children from their home in Lee, New Hampshire. On April 13, 1979, the plaintiff sought and obtained a temporary custody order. The plaintiff then went to Lee and Pease Air Force Base in an unsuccessful attempt to find Janet Gillis and the children. At Pease Air Force Base, the plaintiff presented a copy of the temporary custody order to a USAF officer in the Judge Advocate General’s Corps. On April 18, 1979, the plaintiff provided the USAF with another copy of the custody order. On October 31, 1979, the Probate Court awarded permanent custody of the boys to the plaintiff. In 1980, criminal arrest warrants for kidnapping were issued against the Gillises. The USAF was notified of these warrants. In May, 1983, and May, 1985, the USAF approved Sgt. Gillis’s request to extend his tour of duty in Germany. In July, 28A 1987, after the Gillises returned with the children to the United States they were found guilty of kidnapping under G.L.c. 265, § 26A (1994 ed.), and fined $2,550. Janet Gillis was found in contempt of the October 31, 1979, judgmem and fined $500. While the Gillises were in Germany with the boys in middle to late 1984, the plaintiff engaged Moylan. In January, 1985, Moylan presented an administrative claim to the USAF under the Federal Tort Claims Act (FTCA). The USAF denied the claim, contending that all acts allegedly committed by its per- sonnel took place in Germany and that the FTCA did not apply under the foreign country exception. In July, 1985, Moylan filed a complaint against the Gillises and the USAF in the United States District Court. Despite the USAF’s prior successful invocation of the FTCA’s foreign country exception, Moylan did not draft the complaint to em- phasize the actions of USAF personnel in the United States. In January, 1986, the USAF moved to dismiss on the basis of the foreign country exception. Moylan did not discuss the motion to dismiss with the plaintiff, and unilaterally decided not to oppose it. The United States District Court dismissed the plaintiff's claim against the USAF, noting that no exception had been submitted and that all of the actions by the United States that formed the basis of this complaint occurred in a foreign country. Moylan had not served the complaint on the Gillises for over 120 days. As a result, the United States District Court ordered Moylan to show cause why service had not been made. At the show cause hearing, Moylan failed to recognize or to argue that Fed. R. Civ. P. 4(m) (1995) provides more than 120 days for service on defendants outside of the United States. The District Court dismissed the complaint against the Gillises on February 26, 1986. Subsequent to the dismissal, Moylan learned that service had been properly made, but did not move to vacate the dismissal. 29A In 1988, Moylan filed a second complaint against a USAF official and the Gillises, this time in the Superior Court, alleg- ing intentional infliction of emotional distress and a violation of the Massachusetts Civil Rights Act (G.L. c. 12, § 111 [1994 ed.]).° This second complaint was dismissed against the gov- ernment (as substituted defendant) on the ground that the statute of limitations had expired. Moylan failed to inform the plaintiff that his action in the United States District Court had been dismissed, and that the action in the Superior Court had also been dismissed against the government. He also failed to answer the plaintiff's ques- tions, never sent documents relative to the status of the case, and avoided the plaintiff's calls. The plaintiff did not learn about the two dismissals until 1991. Moylan also failed to inform the plaintiff that he had decided to stop using an inves- tigator in the case. After the plaintiff sued Moylan in July, 1991, Moylan moved to withdraw from the case against the Gillises in the Superior Court. This motion was allowed in March, 1992. Moylan conducted no discovery in either case. The Superior Court case was finally dismissed by November, 1993. 3. Count 1: legal malpractice. In view of the allowance of Moylan’s motion for judgment notwithstanding the verdict, we inquire whether, on any reasonable view of the evidence, there is a combination of facts from which a rational inference may be drawn in the plaintiff's favor. Sullivan v. Brookline, 416 Mass. 825, 826 (1994), and cases cited. In a legal malpractice action a plaintiff who alleges his attorney was negligent in the prosecution of a claim will prevail if he proves that he probably would have obtained a better result had the attorney exercised adequate skill and care. Fish- ’ The plaintiff characterizes the second lawsuit as having been frivolously brought by Moylan, as the statute of limitations had run and insufficient facts were alleged to support a civil rights violation. 30A man v. Brooks, 396 Mass. 643, 647 (1986). “[Fjormer clients suffer a loss due to an attorney’s negligence only if that negli- gence is shown to have made a difference to the client.” Jerni- gan v. Giard, 398 Mass. 721, 723 (1986). (a) The case against the USAF and the discretionary func- tion exception. The defendants argue that the cases against the USAF could not have been won because the claim was barred by: (1) the discretionary function exception to the FTCA; (2) the foreign country exception to the FTCA; (3) the fact that Moylan was not retained until the statute of limitations had run; and (4) insufficient evidence of intent. We agree with the defendants that the claim was barred by the discretionary function exception to the FTCA. We do not reach the other arguments. The discretionary function exception of the FTCA prohibits recovery where the alleged tort is “based upon the exercise or performance or the failure to excercise or perform a discretion- ary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a) (1994). Whether conduct falls under the discretionary function ex- ception is a question of law. See Hart v. United States, 894 F.2d 1539, 1544 (llth Cir.), cert. denied, 498 U.S. 980 (1990); Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987).* The United States Supreme Court has provided a two- step test for applying the discretionary function exception. Berkovitz v. United States, 486 U.S. 531, 536 (1988).° The court must first determine whether the governmental actor had ‘The plaintiff argues that the judge in instructing the jury erred in placing the burden on the plaintiff to show that the discretionary function exception did not apply. As the jury found for the plaintiff on this issue, any error was harmless. “As we have concluded that the discretionary function exception to the Massa- chusetts Torts Claims Act, G.L. c. 258, § 10(b) (1994 ed.), is guided by the same exception in the FTCA, our analysis of cases applying Massachusetts law are also relevant. Harry Stoller & Co. v. Lowell, 412 Mass. 139, 142-43 (1992). 31A discretion to decide which course to follow and, if so, whether the exercise of that discretion involves policy making or plan- ning. United States v. Gaubert, 499 U.S. 315, 323 (1991). Federal law at the time at issue did not obligate the USAF to return enlisted personnel from overseas because of court orders or even criminal warrants. 10 U.S.C. § 814 (the military may or may not deliver members for trial). A member of the armed forces stationed abroad and accused of an offense by civil authority may be delivered, on request, to the civil author- ity for trial. See 32 C.F.R. § 884.3; 32 C.F.R. § 884.4(d). This is “permissive only.” Jennings v. Markley, 186 F.Supp. 611, 613 (S.D. Ind. 1960), aff'd, 290 F.2d 892 (7th Cir. 1961). Therefore, the USAF had discretion to return the Gil- lises to the United States. It is more difficult to determine whether that discretionary conduct involves policy making or planning. Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992), discussing Berkovitz v. United States, supra. The plaintiff's military witness testified that, in making the decision on a request to return military personnel, the overall USAF policy was to act in the best interest of the country and the USAF.° Whether an act is in the best interests of the United States is a matter of policy.’ The decision of the USAF, therefore, was grounded in policy as required by the second part of the discretionary function exception. “There was also evidence offered by the defendants that the USAF had a clear policy of neutrality with regard to child custody disputes. We disregard the neutrality issue and focus on the undisputed policy that all discretionary decisions were to be made in the best interests of the United States and the USAF. "Regulations issued subsequent to this case indicate that now the official policy is that in a parental kidnapping case, the USAF is to encourage their military personnel to cooperate with civil authorities and then possibly withdraw command sponsorship. 32 C.F.R. § 884.5 (1995). There is no requirement for either of those actions. The plaintiffs cite to Harry Stoller & Co. v. Lowell, supra at 141, for the proposition that, when conduct involves carrying out previously established policies or plans, then the governmental entities should not be immune. Since there was no clear policy established. this case does not apply. 32A As the Supreme Court has stated: When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, al- lows a Government agent to excercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion. . . . The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis. United States v. Gaubert, supra at 324-25. Because operational decisions are included within the discretionary function excep- tion, id. at 334, even the initial act of permitting Sgt. Gillis to leave this country with his wife’s children falls within the exception. The judge acted properly in allowing the defendants’ motion for judgment notwithstanding the verdict on the claim asserted against the USAF. (b) The plaintiffs claim against the Gillises. The judge entered judgment for Moylan and Cargill notwithstanding the verdict first, because the plaintiff did not submit any evidence of the collectability of a judgment against the Gillises; and, second, because the plaintiff knew that Moylan had withdrawn from the Superior Court case while there was still a viable claim. A plaintiff in a legal malpractice action asserting negligence in the handling of his claim in the underlying action bears the burden of showing that he would have been able to collect on the judgment obtained in the underlying case. Jernigan v. Giard, 398 Mass. 721, 723 (1986). He may only collect from the defendant lawyer what he could have collected from the defendant in the underlying act, but for the attorney’s negli- — gence. /d. See also Barry, Legal Malpractice in Massachusetts: Recent Developments, 78 Mass. L. Rev. 74, 81 (1993). 33A Although there was evidence that Sgt. Gillis was employed by the USAF at the time, there was no evidence on the state of his finances. He could have had secured obligations equal to or in-excess of his income as a USAF Sergeant. Income is not a measure of ability to pay without an assessment of debts. Many, if not most, insolvents have some income. There was no evidence whatsoever pertaining to the income or financial condition of Janet Gillis. The plaintiff failed to sustain his burden of proving the collectability of the judgment against the Gillises. Moylan withdrew with court approval from the action pend- ing in the Superior Court on March 25, 1992. The claim was not dismissed against Janet Gillis until August, 1992, and was not dismissed against her husband until November 2, 1993. Therefore, when Moylan withdrew from the case with court permission after notice to the plaintiff, there was still a viable case pending against the Gillises and it was still possible to proceed with discovery and investigation. There was no evi- dence of damage occurring to the plaintiff as a result of Moylan’s conduct in that action up to the time of his withdrawal. 4. Misrepresentation and deceit. The plaintiff argues that the judge erroneously limited evidence of damages resulting from Moylan’s misrepresentation or deceit, gave incorrect jury instructions on damages, and erroneously reduced the damages awarded by the jury. (a) Jury instructions, evidence, and award on misrepresen- tation. The jury found that the plaintiff sustained damages of $10,000 as a result of Moylan’s misrepresentation. The judge reduced the damages award to $295, ruling that the plaintiff could only recover his out-of-pocket expenses which the judge found to be filing fees paid on the Federal case. The jury could have found that Moylan failed to tell the plaintiff that his Federal District Court action against the USAF and the Gillises had been dismissed on February 26, 1986. The 34A jury could have also found that Moylan did not inform the plaintiff of his decision to stop using an investigator to interview witnesses and gather evidence after October, 1988. There was no evidence that Moylan’s deceit caused the dismissal of the Federal action. Therefore, the filing fee did not relate to the alleged deceitful acts. Proof of damages flowing from misrep- resentations is essential to recovery. Cardullo v. Landau, 329 Mass. 5, 7 (1952). “Where a plaintiff does not prove that he is worse off than if there had been no misrepresentation he has not made out a case of deceit.” Connelly v. Bartlett, 286 Mass. 311, 315 (1934). The only other evidence of direct damage incurred by the plaintiff was that he spent about $10,000 from 1979 to 1987 in his attempt to get his children back. However, this evidence was restricted without objection to apply only to the underlying claim against the USAF. Because we conclude that the claim against the USAF could not have been won, there could be no damages arising from any misrepresentations concerning its dismissal. For this same reason the plaintiff cannot succeed in his argument that the judge erroneously excluded correspondence, newspaper articles, and testimony which supported his allega- tion that Moylan never told him that the Federal case against the USAF had been dismissed. (b) Loss of consortium claims. The jury concluded that the plaintiff's wife did not suffer a loss of consortium related to the defendants’ negligence. Therefore, no damage could arise from Moylan’s conduct in regard to the loss of consortium claim. Furthermore, the argument that Moylan was negligent in failing to bring a loss of consortium claim on behalf of the plaintiff's wife in the underlying claim was not properly pre- sented as a theory of recovery at trial. An appeal is not the proper time to advance new theories of recovery. See Common- wealth v. George, 406 Mass. 635, 636 n.4 (1990). 35A Finally, because the plaintiff's wife was not a party to the underlying tort action and was not a client of Moylan, he could not be liable for her loss of consortium claim. (c) Judicial bias generally. The plaintiff ciaims that the judge was unfairly biased against him from the beginning, thus violating his constitutional right to a fair and impartial jury trial. The motion judge, who was not the trial judge, denied the plaintiff's motion for a new trial on this ground. We will not reverse the lower court’s denial of a new trial motion absent an error of law or abuse of discretion. Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520-21, cert. denied, 493 U.S. 894 (1989). There was no such error or abuse. During the trial, the plaintiff did not object or move for a mistrial on the ground of judicial bias, nor did he move for disqualification or recusal of the judge. Although this does not necessarily mean there was no bias, we do take this into con- sideration when viewing the record. Commonwealth v. Fitzgerald, 380 Mass. 840, 846 (1980). In addition, the plain- tiff on appeal has failed to point out in any concrete way how the judge’s conduct might have harmed him apart from the judge’s decisions already discussed. See Commonwealth v. Armand, 411 Mass. 167, 171 (1991). 5. Case against Cargill. The jury concluded that Cargill did not have the right to exercise control over Moylan’s hand- ling of the plaintiff's case after January, 1986." There was more than adequate evidence to support this finding, and the plaintiff does not argue otherwise. He argues instead that he is entitled to a new trial because of new evidence, namely a private reprimand issue in 1987 by the Board of Bar Overseers regarding a case handled by Moylan in 1982 and 1983 before his affiliation with Cargill following which an employee of Cargill acted as a monitor of Moylan’s practice. The judge denied this motion. "The date when Moylan became an associate of Cargill. 36A A motion for a new trial is addressed to the sound discretion of the judge. Robertson v. Gaston Snow & Ely Bartlett, supra at 520. The reprimand makes no mention of Cargill and does not suggest he had the right to control Moylan’s actions in the underlying action. There was no abuse of discretion. 6. General Laws c. 93A. Ina separate bench trial, the judge concluded that the defendants’ actions or omissions did not constitute unfair or deceptive acts or practices in violation of G.L. c. 93A. The plaintiffs moved for a new trial which was denied. We review to determine whether this denial was an abuse of discretion. The judge found that: even if [Moylan] was negligent in his research (not noting that [USAF] personnel assignments required approval by a Texas command), this does not give risetoaG.L.c.93A violation nor did this result in a deceptive act. Further, [Moylan’s] quote of a normal contingent fee of 1/3 of recovery before he knew a suit would be commenced under the FTCA, which permits only a 25% fee, did not amount to an unfair or deceptive act or practice especially when no fee was ever charged or paid. In addition, I find at no time did Moylan deceive Poly. That although the defendant was negligent, he did not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. “[A] judge may make independent and, therefore, different, findings on the c. 93A aspect of a case that arises from the same facts which gave rise to parallel common law claims.” Wyler v. Bonnell Motors, Inc., 35 Mass. App. Ct. 563, 567 (1993). The evidence adequately supports the judge’s findings. There was no abuse of discretion. 37A Conclusion. The judgment notwithstanding the verdict on the malpractice claim is affirmed. The damages under the deceit claim are vacated, and the denial of damages under G.L. c. 93A is affirmed. So ordered. 38A APPENDIX D COMMONWEALTH OF MASSACHUSETTS Essex, ss. Superior Court Civ. #91-2299 George P. Poly and Maureen S. Poly Vv. Cargill & Associates Thomas E. Cargill and Michael T. Moylan RULING ON MOYLAN’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICTS On a defendant’s motion for judgment notwithstanding a verdict, the judge is to consider whether any evidence, consid- ered in the light most favorable to the plaintiff, permits a reasonable inference in favor of the plaintiff on the count on which the jury returned a verdict favorable to the plaintiff. Forlano v. Hughes, 393 Mass. 502, 504 (1984); O’Shaugh- nessy V. Besse, 7 Mass. App. Ct. 727, 728-29 (1979); Conway v. Sterling, 37 Mass. App. Ct. 1 (1994). “Conflicting evidence alone does not justify judgment notwithstanding the verdict ... [I]t is of no avail for the defendant to argue that there was some or even much evidence which wouid have warranted a contrary finding by the jury’. . . the court may not substitute its judgment of the facts for that of the jury.” Tosti v. Ayik, 394 Mass. 482, 494 (1985). OS SAIPAN LPNS mel lw ody Sp a POAT TIERS 39A I. Count 1: Legal Malpractice In order for a recovery on this count, the plaintiff had the burden of proving “that he probably would have obtained a better result had the attorney exercised adequate skill and care” in the underlying case. Fishman v. Brooks, 396 Mass. 643, 647 (1986). Re: Poly v. U.S. Air Force The action against the Air Force was based on the Federal Torts Claims Act, 28 U.S.C. § 2671 et sequi (1970) (FTCA). The basic allegations were: (a) transferring Sgt. Gillis from Pease Air Force Base in New Hampshire to Ramstein Air Base, Germany, (b) approving “command sponsorship” for Mrs. Gillis (Poly’s former wife) and her two sons from the Poly marriage, which permitted Mrs. Gillis and the sons to join Sgt. Gillis in Germany, (c) extending Sgt. Gillis’s tour of duty in Germany until after the older son attained majority, and (d) not causing Sgt. Gillis and/or Mrs. Gillis and/or the two sons to return to Massachusetts after Massachu- setts arrest warrants were issued for the arrest of Sgt. Gillis and Mrs. Gillis for kidnapping and/or for not honoring the Massachusetts Probate Court order grant- ing custody of the two sons to Poly. There was no evidence as to the date the Air Force decisions were made as to (a) and (b) above. Although the action commenced by Moylan in the Federa! District Court, docket #85-2907MA, was dismissed on the Government’s motion without opposition by Mazone, J. with the following notation “all the acts by the United States which form the basis of this complaint took place in a foreign country 40A and this complaint is excluded under the Federal Torts Claims Act by 28 U.S.C., § 2860(k),” there were other valid defenses that would have prevented Poly from prevailing in the law suit. The FTCA, 28 U.S.C. § 2401(b), requires as a condition precedent to a law suit, that a presentment be made within two years after such claim accrues. Sgt. Gillis’s transfer to Germany occurred in 1979, the same year Mrs. Gillis and the two sons joined her husband under “command sponsorship.” Poly knew the whereabouts of his sons no later than September, 1979 (Ex. 44). By May 1981 Poly had come to the conclusion that the Air Force was aiding in violating his rights and that the Gillises were using the Air Force to shield themselves from prosecution (Ex. 46). “A cause of action will accrue when the plaintiff actually knows of the cause of action or when the plaintiff should have known of the cause of action.” Riley v. Presnell, 409 Mass. 239, 244 (1991). If facts are in dispute, the question when a cause of action accrues is for the jury. If the facts are not in dispute, it is an issue of law. By the time Poly met Moylan in 1984 no presentment had been made in behalf of Poly. The FTCA § 2680(a) contains an express exemption to gov- ernmental liability for “any claim based upon an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or perfor- mance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the government. . .”. Whether an act is a discretionary function is not a question of fact but a matter of law for the court. “[BJoth Federal and State cases hold that the application of the discretionary function exception is a question of law for the court. Hart v. United States, 894 F.2d 1539, 1544 (11th Cir.), cert. denied, 498 U.S. 980 (1990); Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987). . .” Alter v. City of RSS i i mm 2 ane 41A Newton, 35 Mass. App. Ct. 142, 148 (1993). Even decisions made at the operational level, as opposed to those made at the policy or planning level, would involve conduct immunized by the discretionary function exemption if the conduct were the result of policy determinations. United States v. Gaubert, 499 U.S. 315 (1991). Stoller v. City of Lowell, 412 Mass. 139, 141 (1992). “An agency may rely on internal guidelines rather than on published regulations.” U.S. v. Gaubert, supra at 324. A plaintiff has the burden of proving a properly invoked exemption does not apply. Hydrogen Tech Corp. v. United States, 831 F.3d 1155, 1162 n.6 (Ist Cir. 1987), cert. denied, 406 U.S. 1022 (1988). Both experts, Air Force Lt. Gen. Stans- berry for the plaintiff and Ms. Keesling (former Assistant Secretary of the Air Force) for the defendant, testified that decisions regarding assignments and “command sponsorship” were discretionary functions. There was no conflicting testi- mony on this issue. I rule that the assignment of Sgt. Gillis to Germany, the approval of “command sponsorship” and the extensions of Sgt. Gillis’s tours of duty were discretionary functions by the Air Force and thus the Air Force was exempt from liability under the FTCA. See Burns v. United States, 618 F.Supp. 882 (D.Mass. 1985). In addition, the evidence introduced indicated that in custody matters, neutrality was the official Air Force policy. (Ex. 13, 16, 18, 68). In carrying out official policy the Air Force is exempt from liability under the FTCA. The Air Force was not obligated to return enlisted personnel from overseas because of court orders or criminal warrants. By statute, the military may or may not deliver members for trial. 10 U.S.C. § 814. Regulations in effect from 1979 through 1987 allowed the Air Force to refuse to deliver an airman for trial even on an aggravated felony if the airman was stationed overseas. 32 C.F.R. § 884.4(d) (1964). Under regulations as 42A prescribed by the Secretary, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial. This is “permissive only.” Jennings v. Markley, 186 F.Supp. 611 (S.D. Ind. 1960). Operating Instructions dated May 16, 1983 from the Office of the Judge Advocate General (Ex. 71) state that requests for the return of an overseas airman will be reviewed by HQ USA/ JAJ to determine the best interests of the Air Force. Although there were arrest warrants outstanding there was no evidence introduced that an attempt to have either of the Gillises extra- dited from Germany. See Ex. 20. In regard to the Military Claims Act, 10 U.S.C. § 2733, Moylan did appeal the Air Force’s disallowance of relief under this act. The appeal was denied which was final and conclusive, there being no court review. Kodrigue v. United States, 968 F.2d 1430 (Ist Cir. 1992); Broadnax v. United States, 710 F.2d 865 (D.C. Cir. 1983). Therefore, Poly would not have prevailed in his underlying action against the Air Force. Re: Poly v. Sgt. Gillis and Mrs. Gillis Although Federal District Court action #85-2907MA was dismissed on February 28, 1986 as to the Gillises, Moylan on May 11, 1988 refiled the Poly’s claim against the Gillises in Suffolk Superior Court, Civ. #88-2726 (Ex. 37 and Ex. 48) and when Moylan withdrew, with the Superior Court’s permis- sion, on March 25, 1992 (Ex. 37) his appearance in behalf of Poly (as a result of this suit), the action was still pending. Said action was not dismissed until November 2, 1993, over 17 months after Moylan’s withdrawal. Therefore, Poly could not prove that “he probably would have obtained a better result had the attorney exercised adequate skill and care.” See Fishman v. Brooks, 396 Mass. 643 (1986). In addition, for a plaintiff to recover in a legal malpractice action, he has the burden of showing that a judgment in his favor oA SNRs Nt it At hd 43A would have been collectible to some degree. Jernigan v. Giard, 398 Mass. 721, 723 (1986). There was no evidence introduced as to the Gillis’s finances once they returned to the United States. Therefore, in regard to Count | (legal malpractice) the de- fendant’s motion for judgment N.O.V. is allowed. II]. Count 2 - Deceit The jury found that Moylan was liable for deceit. There was testimony that Poly “spent” about $10,000 from 1979 on without specifics in his attempt to get back his children. There was no evidence introduced that any of this was caused by any misrepresentation or any statement by Moylan except $295.00 Poly advanced for the entry fee for Fed.Dist.Ct. doc- ket #85-2907MA. Only those losses directly resulting from, Alpine v. Friend Bros, Inc., 244 Mass. 164, 167 (1923) or which were a foreseeable consequence of the deceit, Kohl v. Silver Lake Motors, 369 Mass. 795 (1976), should be recover- able. To recover the loss-of-the-bargain, the misrepresentation must amount to a warranty. No misrepresentation evidence was introduced that amounted to a warranty. Therefore, Poly is limited to his out-of-pocket expenses resulting from Moylan’s statements, to wit: $295.00. See Rice v. Price, 340 Mass. 502 (1960). Therefore, the defendant’s motion for judgment N.O.V. as to Count 2 (deceit) is denied. However, the damages awarded are reduced to $295.00 444A CONCLUSION: As to Count 1: Judgment for Poly is vacated and judgment shall enter for Moylan. As to Count 2: Judgment for Poly in the amount of $10,000 is vacated and judgment for Poly shall issue in the amount of $295.00. /s/ John P. Forte Justice July 23, 1994 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1948%3A1. Public record. Not legal advice.