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Greenspun v. Boghossian

Appeals Court of Massachusetts, Suffolk

May 22, 2019

LEON C. BOGHOSSIAN, THIRD, & another.[1]

          Heard: February 8, 2019.

         Civil action commenced in the Superior Court Department on March 30, 2015.

         The case was heard by Heidi E. Brieger, J., on a motion for summary judgment.

          John C. Foskett for the plaintiff. Alan D. Rose (Meredith W. Doty also present) for the defendants.

          Present: Green, C.J., Agnes, & Desmond, JJ.

          GREEN, C.J.

         After a judge of the Probate and Family Court authorized the plaintiff's former wife, incident to their divorce, to buy out his interest in the former marital residence for one-half of its value (effectively recognizing a one-half interest in the wife), the plaintiff brought an action against the defendants for legal malpractice, claiming that his attorney failed properly to incorporate into an antenuptial agreement an agreed-upon provision that would have entitled his wife to only a small fraction of the home's value. A judge of the Superior Court dismissed the complaint on the defendants' motion for summary judgment, based on the plaintiff's failure to furnish expert evidence on the issue of causation. Because the issue of causation rests on a question of law, however, no expert testimony was required. See Silva v. Norfolk & Dedham Fire Ins. Co., 91 Mass.App.Ct. 413, 420 (2017). We accordingly vacate the judgment of dismissal.


         We recite the facts in the light most favorable to the plaintiff. See Niles v. Huntington Controls, Inc., 92 Mass.App.Ct. 15, 18 (2017). In the summer of 2008, after the plaintiff and Michelle Barnes decided to marry, they "collaboratively" drafted a "Google [d]oc"[2] to "identify [their] premarital assets and debts and to define [their] mutual rights and obligations regarding property and finances after" marriage. The Google doc contained a section titled "Real Estate Bought for Cash," which provided that "[i]f one partner's savings are used to purchase real estate with no mortgage, the other partner will accrue a 2.5 percent ownership interest in the real estate every year after the purchase, assuming the marriage is intact, up to a maximum ownership interest of 50 percent." The plaintiff and Barnes clarified the intended operation of the provision with an example: "A house is purchased in 2010 . . . and paid for entirely from [the plaintiff's] money market funds. In the event of a divorce in 2020, [Barnes] would receive 25 percent of the value of the house. In the event of a divorce in 2030 or after, the house equity would be split 50/50."

         In August 2008, Barnes hired attorney Karen Kearns to draft an antenuptial agreement based on the Google doc. The plaintiff hired the defendant Leon C. Boghossian, III, on September 8, 2008, and noted that Kearns was to "turn this Google document into a standard pre-nup." The plaintiff told "Boghossian that one of the most important terms in the Google doc was a section entitled on [sic] 'Real Estate Bought for Cash.'"

         Several drafts of the antenuptial agreement thereafter circulated among Kearns, Barnes, the plaintiff, and Boghossian. The plaintiff reviewed the drafts and sent his feedback to both attorneys, but he relied on Boghossian "to create a document that implemented the terms of the Google [d]oc and protected [his] interests." On October 3, 2008, the plaintiff and Barnes executed the final version of the antenuptial agreement. Article III, paragraph 12 (paragraph 12) of the antenuptial agreement -- the relevant text of which is reproduced in the margin[3] -- detailed the plaintiff's and Barnes's respective ownership interests in a principal residence acquired during the marriage in various factual circumstances.

         On October 5, 2008, the plaintiff and Barnes married. Two days later, on October 7, 2008, the plaintiff used his separate property to buy a house in Lincoln for $1.4 million (house), taking title in his name alone. The house became the plaintiff's and Barnes's principal residence during their marriage. The couple had a baby in August 2009. Barnes filed for divorce on September 29, 2011. During the divorce proceedings, Barnes challenged the validity of the antenuptial agreement. A Probate and Family Court judge (probate judge) found the antenuptial agreement valid, and determined that paragraph 12(c)(iv) (rather than paragraph 12[a]) applied to the couple's respective rights in the house, because the couple had a minor child and both the plaintiff and Barnes wished to retain the house. The probate judge ordered that Barnes could buy out the plaintiff's interest in the house for $727, 500.[4] Had the provisions of paragraph 12(a) (which incorporated the equity accrual provisions set forth in the Google doc) been applied, Barnes's interest in the house would have been only 7.5 percent, instead of fifty percent. Barnes completed her purchase of the plaintiff's interest in the house by making the $727, 500 payment in July 2014.[5]

         On March 30, 2015, the plaintiff filed a complaint for, among other claims, legal malpractice against Boghossian and his law firm, asserting that the plaintiff had purchased the house, with cash, from his own property, two days after the wedding, "[r]elying on [his] understanding from Attorney Boghossian that any potential division of the asset would be governed by the 2.5 percent annual accrual provision," and that, had the antenuptial agreement been drafted as he instructed -- that is, had it "implemented the terms of the Google [d]oc" -- Barnes would have received only 7.5 percent of the value of the house, rather than fifty percent. Had the plaintiff known that the antenuptial agreement did not "protect[] [his] interests," he would have "purchased the home in Lincoln prior to the marriage and refrained from solely purchasing any real estate subsequent to the wedding."

         The defendants moved for summary judgment and, after a hearing, a judge of the Superior Court (motion judge) allowed the motion, based on the absence of expert evidence ...

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