Fistel v. Favaloro
Fistel v. Favaloro
Opinion of the Court
This case involves a straightforward real estate transaction in which the buyer, Susan Fistel, relied to her peril upon Mark Favaloro, the lending bank’s attorney, whose review of the deed was apparently deficient. The summary judgment record suggests no basis that would warrant such reliance, and judgment entered for the attorney on the buyer’s claims. The buyer appeals, claiming that it was foreseeable that she would rely on the attorney who, in the circumstances, had a duty to her as a nonclient. We affirm.
The pertinent undisputed facts are these. The plaintiff buyer
The buyer plainly understood that the bank’s attorney represented the bank and did not represent her; she knew in advance of the closing that she was free to retain counsel to represent her interests in the transaction. While not asserting the existence of an attorney-client relationship between herself and the bank’s attorney, she maintains that the attorney is nonetheless liable to her as a nonclient, particularly given the arguable congruity of the bank’s and buyer’s interests with respect to the inclusion of the six parking spaces in the conveyance.
The case is governed in all material respects by Page v. Frazier, 388 Mass. 55 (1983). Here, as there, the buyer made the “conscious decision, after disclosure, to elect the riskier path” of not obtaining her own counsel to represent her interests. Id. at 66. Notwithstanding some putative overlap in the bank’s and buyer’s interests in the parking spots that were not conveyed, the bank’s attorney at all times had an “independent and potentially conflicting duty” to his client, the lending bank. Id.
Judgment affirmed.
The buyer also sued the seller, broker, and, on a theory of vicarious liability, the attorney’s law partner. The seller and broker have settled with the buyer. The judge entered summary judgment for the attorneys, dismissing all of the buyer’s claims against them. The buyer presses only the legal malpractice claim in her brief on appeal. The remaining claims sounding in intentional or negligent infliction of emotional distress and violation of G. L. c. 93A are deemed waived under Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
As in Page v. Frazier, supra at 60-61, there is no suggestion here that the premises conveyed were to be occupied by the buyer or otherwise fell within the protection afforded a borrower by G. L. c. 93, § 70.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.