Estate of Berganzo-Colón Ex Rel. Berganzo v. Ambush
704 F.3d 33
1st Cir.2013Background
- Ambush, an attorney, challenges district court judgments nullifying two retainer agreements with his clients.
- The district court held that Ambush obtained consent via deceit (dolo) in the Franqui v. Syrian Arab Republic litigation and related Libyan settlement proceeds.
- Plaintiffs, heirs of Berganzo-Colón and Rodríguez-Morales, alleged Ambush misrepresented Center payments and the effects of signing the retainer agreements.
- Center for Civil Justice had earlier funded investigations and may represent a competing interest; Ambush claimed an oral entitlement to a 10% fee contingent on nonpayment by the Center.
- Libya settlement funds of $10 million per estate were distributed, with Ambush taking portions and disbursing sums to the Center and heirs.
- Non-testifying heirs (angels) were considered as parties for purposes of dolo claims, allowing the jury to consider their claims as to consent induced by deceit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of dolo evidence | Ambush deceived heirs to obtain consent to the retainer. | Evidence does not prove deceit by Ambush; testimony was credible. | Sufficiency supports jury finding of dolo. |
| Dolo against non-testifying heirs | Non-testifying heirs’ claims rely on testimony about deceit affecting their consent. | Non-testifying heirs cannot prove dolo without testifying personally. | Evidence supports jury finding for non-testifying heirs; not entitled to JMOL or new trial. |
| Jury instruction on dolo type | Courts should instruct on incidental dolo as well as serious dolo. | Case pursued only serious dolo; incidental dolo would confuse the jury. | Instruction on incidental dolo not required; serious dolo adequately covered. |
Key Cases Cited
- Aponte-Rivera v. DHL Solutions (USA) Inc., 650 F.3d 803 (1st Cir. 2011) (credibility and sufficiency of witness testimony in dolo cases)
- In re Advanced Cellular Sys., Inc., 483 F.3d 7 (1st Cir. 2007) (extrinsic evidence and contract interpretation when fraud is at issue)
- Soto v. State Indus. Prods., Inc., 642 F.3d 67 (1st Cir. 2011) (ignorance of contract terms not a defense where deceit occurred)
- Colón Rivera v. Promo Motor Imps., Inc., 144 P.R. Dec. 659 (1997) (distinguishes serious vs. incidental dolo; consent invalid if dolo is serious)
- St. Paul Fire & Marine Ins. Co. v. Ellis & Ellis, 262 F.3d 53 (1st Cir. 2001) (circumstantial evidence may prove reliance in fraud cases)
- Jiménez v. Rodríguez-Pagán, 597 F.3d 18 (1st Cir. 2010) ( Rule 19/adequacy of party disposition considerations in Puerto Rico context)
- Ramos v. Davis & Geck, Inc., 167 F.3d 727 (1st Cir. 1999) (standard for reviewing denial of new trial; weight of evidence)