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March 24, 2026 Get Citation Alerts Download PDF Add Note

EDWARD P. O'NEIL, THIRD, & Another v. LOUISE A. GAUDET & Others.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-1298

• Precedential Status: Non-Precedential

• Opinion

• Authorities (29)

• Cited By (0)

• Summaries (0)

• Similar Cases (32.2K)

• PDF

Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1298

EDWARD P. O'NEIL, THIRD, & another1

vs.

LOUISE A. GAUDET2 & others.3

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Edward O'Neil, III, and E.P. Snyder

Enterprise Inc., allege that defendants Louise A. Gaudet, both

individually and in her capacity as personal representative of

the estate of Charles E. (Charlie) Gaudet4 and in her capacity as

the trustee of three realty trusts, and Birch Hollow, LLC,

1 E.P. Snyder Enterprise Inc.

2Individually, as personal representative of the estate of
Charles E. Gaudet, and as trustee of the 46 Pleasant Street
Realty Trust, the 58 Tenney Road Realty Trust, and the 5
Makepeace Road Realty Trust. Charlie Gaudet passed away in
2023.

3 Birch Hollow, LLC, and Douglas E. Hausler.

4Because Louise and Charles Gaudet share a surname, we
refer to Louise by her first name and Charles by his nickname,
Charlie.
(collectively with Charlie, who was a defendant in the case

before his decease, Gaudet defendants) committed a breach of

oral agreements concerning the purchase and development of

properties in Westford that attorney Douglas Hausler, who is

also a defendant, facilitated by representing both parties. The

plaintiffs now attempt to appeal from (1) a Superior Court

judge's order vacating a preliminary injunction and dissolving a

memorandum of lis pendens, which plaintiff O'Neil obtained

against the Gaudet defendants, and (2) the decision of a single

justice of this court refusing to grant relief from those

orders. The plaintiffs also appeal from a separate and final

judgment dismissing all of their claims against Defendant

Hausler. We dismiss the appeal from the Superior Court decision

concerning the preliminary injunction and lis pendens, and we

affirm the judgment dismissing the claims against Hausler. The

plaintiffs did not file a valid notice of appeal from the single

justice order, and the arguments regarding that order are not

properly before us.

Background. We summarize the facts found by the judge at

the hearing to dismiss the complaint and vacate the preliminary

injunction and lis pendens, supplemented with undisputed facts

from the record. O'Neil brought suit by alleging that the

parties had a business agreement providing, in general, that the

Gaudet defendants would acquire real properties and pay all

2
development and construction costs thereon in exchange for

O'Neil paying an agreed on rate of fourteen percent interest

plus two points on the monies advanced, to be paid when the

properties were sold or refinanced. O'Neil would receive any

additional money from the sale of the property after the loan

was repaid. O'Neil further alleges that Hausler represented

both parties in these transactions.

Beginning in 2019, Charlie held title to and set up trusts

for three properties in Westford, Massachusetts: 46 Pleasant

Street, 58 Tenney Road, and 5 Makepeace Road. O'Neil razed the

existing dwelling at 46 Pleasant Street and constructed a new

home into which he and his family moved. In July 2022, Charlie,

as trustee of the 46 Pleasant Street Realty Trust, brought a

summary process action in the Housing Court against O'Neil to

evict him from 46 Pleasant Street.5 O'Neil asserted defenses and

counterclaims based on his status as a tenant. Shortly

thereafter, O'Neil retained counsel and sent a letter to Hausler

requesting loan "payoff" amounts and detailed accounting of the

three Westford properties. Hausler, as counsel on behalf of the

Gaudet defendants, denied the existence of any agreement between

5 The eviction action was stayed on July 26, 2023, pending
resolution of the Superior Court matter involving the same
property which is the subject of this appeal.

3
the parties, and requested that O'Neil and his counsel provide

any loan documents pertaining to the properties at issue.

In October 2022, O'Neil, as the sole plaintiff, filed a

verified complaint against the Gaudet defendants and Hausler,

claiming that the Gaudet defendants verbally agreed to purchase

46 Pleasant Street, 58 Tenney Road, and 5 Makepeace Road, pay

all affiliated development and construction costs, and take

title to the properties on the condition that O'Neil pay

fourteen percent interest plus two percent on the monies loaned

at the time of sale or refinance. In that complaint, O'Neil did

not repeat his claim made in the Housing Court that he had been

in a tenant-landlord relationship with Charlie concerning the

property at 46 Pleasant Street.

In late October 2022, O'Neil also filed, in the Superior

Court, a motion for a temporary restraining order, or in the

alternative, injunctive relief, and a motion for issuance of a

memorandum of lis pendens on 46 Pleasant Street and 5 Makepeace

Road. The Gaudet defendants filed an opposition to O'Neil's

motion. After a two-party hearing, a Superior Court judge

approved O'Neil's memorandum of lis pendens on 46 Pleasant

Street and 5 Makepeace Road, and granted O'Neil's request for a

preliminary injunction, which enjoined the Gaudet defendants

4
from encumbering or transferring those two properties and from

evicting O'Neil from 46 Pleasant Street.6

On November 2, 2023, the Gaudet defendants7 filed an omnibus

motion for reconsideration regarding the issuance of a

preliminary injunction and a memorandum of lis pendens. In

addition, in October 2023, Hausler moved to dismiss the amended

verified complaint. In response, O'Neil moved to file a second

amended complaint to address factual and legal issues that

Hausler raised in his motion to dismiss and to add E.P. Snyder

Enterprise Inc. as a plaintiff.

These motions were consolidated for a hearing before a

second Superior Court judge. On July 30, 2024, the second

Superior Court judge vacated the preliminary injunction and

dissolved the lis pendens. Although the judge granted O'Neil's

motion to file the second amended complaint as it related to the

Gaudet defendants, she denied the request to amend with respect

to Hausler because she concluded that the proposed amended

allegations did not plausibly suggest an entitlement to relief

as related to Hausler, i.e., were futile. Accordingly, the

6 The operative complaint at the time the first judge
granted O'Neil's request for injunctive relief and approved the
memorandum of lis pendens was O'Neil's amended verified
complaint.

7 Charlie passed away in 2023, prior to O'Neil's deposition.

5
judge allowed Hausler's motion to dismiss the plaintiffs'

amended verified complaint.

Thereafter, on August 27, 2024, the plaintiffs appealed to

a single justice of this court from the vacatur of the

preliminary injunction, the dissolution of the lis pendens on 46

Pleasant Street and 5 Makepeace Road, the dismissal of the

claims against Hausler, and the denial of O'Neil's motion to

amend as to Hausler.8 On September 4, 2024, the single justice

denied all requests after concluding that the plaintiffs "have

not demonstrated a clear error of law or an abuse of

discretion," and did not report the matter to a full panel of

the Appeals Court.

Three weeks later, on September 25, 2024, the judge who

dismissed the plaintiffs' proposed second amended verified

complaint against Hausler directed the entry of a separate and

final judgment, pursuant to Mass. R. Civ. P. 54 (b), 365 Mass.

820 (1974), only as to the claims against Hausler. On October

15, 2024, the plaintiffs, in their second notice of appeal,

attempted to appeal from the preliminary injunction and lis

pendens decisions of the single justice and second Superior

Court judge. In their third notice of appeal, filed that same

8 The notice of appeal dated August 27, 2024, represented
the plaintiffs' first notice of appeal.

6
day, the plaintiffs appealed from the separate and final

judgment dismissing the claims against Hausler.

Discussion. 1. Preliminary injunction and lis pendens.

We do not reach the parties' substantive arguments concerning

the judge's vacatur of the preliminary injunction and

dissolution of the lis pendens, or the single justice's denial

of the petition for relief from those orders. First, the

plaintiffs' notice of appeal from the order of the single

justice of this court was not valid, as it appears to have been

filed in the Superior Court, rather than with the clerk of this

court.9 Furthermore, we conclude that the plaintiffs' appeal of

these issues, as noticed in their second notice of appeal, falls

outside the statutorily-set thirty-day appeal periods under

G. L. c. 231, § 118, and G. L. c. 184, § 15 (d).10 "A timely

9 Although this second notice of appeal does not appear on
either the Superior Court or the Appeals Court docket, the
Gaudet defendants do not argue that the notice of appeal was not
filed, and the notice itself suggests that it was filed in the
Superior Court. We note that when a notice of appeal is
mistakenly filed in an appellate court, the Massachusetts Rules
of Appellate Procedure require that it be transmitted to the
clerk of the lower court and deemed filed. See Mass. R. A. P.
4 (a) (1) (B), as appearing in 496 Mass. 1601 (2022). However,
the rule does not specify that the same should occur when a
notice of appeal is mistakenly filed in a lower court.
Regardless, even if there was a valid notice of appeal from the
single justice order, it was untimely.

10The second notice of appeal concerns the Superior Court
judge's orders vacating the preliminary injunction and
dissolving the lis pendens as well as the single justice's
denial of the analogous appeal. The third notice of appeal

7
notice of appeal is a jurisdictional prerequisite to our

authority to consider any matter on appeal." DeLucia v. Kfoury,

93 Mass. App. Ct. 166, 170 (2018). The controlling dates for

this appeal are (1) July 30, 2024, the date of the Superior

Court judge's order vacating the preliminary injunction and

dissolving the lis pendens, and (2) September 4, 2024, the date

of the single justice's order. We note that the plaintiffs'

second notice of appeal as included in the record appendix is

dated October 15, 2024. It follows that this notice of appeal

was filed forty-seven days after the conclusion of the thirty-

day appeal period that began after the Superior Court judge's

July 30, 2024, order. See G. L. c. 231, § 118, second par.

While the plaintiffs initially timely appealed the orders to a

single justice, their decision to seek discretionary relief from

a single justice did not alter the strict thirty-day appeal

period under the second paragraph of § 118. See DeLucia, 93

Mass. App. Ct. at 167-171. "[A] party taking an appeal from the

denial of a request for injunctive relief pursuant to the second

paragraph also may seek temporary relief, available at the

discretion of the single justice, pursuant to the first

paragraph." Ashford v. Massachusetts Bay Transp. Auth., 421

Mass. 563, 567 (1995). Accordingly, the plaintiffs' appeal from

concerns only the separate and final judgment dismissing all
claims against Hausler.

8
the judge's order on July 30, 2024, vacating the preliminary

injunction and dissolving the lis pendens, was not timely filed,

leaving us without jurisdiction to consider the merits of the

appeal. Nor was the plaintiffs' second notice of appeal proper

with respect to the single justice order, even if it were

properly filed with the clerk of this court, as it was filed

eleven days past the thirty-day deadline and was otherwise not

within the scope of G. L. c. 231, § 118, second par.11

Were we to reach the merits of the appeal, we would see no

basis to find that the judge abused her discretion in concluding

that the plaintiffs failed to comply with the strict

requirements of the lis pendens statute, and that the

preliminary injunction was no longer warranted given the

plaintiffs' evolving positions, which undermined their

likelihood of success on the merits, and after a balancing of

the harms.

1. Claims against Hausler. The plaintiffs contend that

the judge erred in granting Hausler's motion to dismiss the

amended verified complaint, pursuant to Mass. R. Civ. P.

11That provision authorizes an appeal from a single justice
decision to a panel of the Appeals Court only where the single
justice has "grant[ed] a petition for relief from" certain
orders relating to preliminary injunctions. G. L. c. 231,
§ 118, second par. Here, the single justice denied all relief
sought by the plaintiffs.

9
12 (b) (6), 365 Mass. 754 (1974), and denying the plaintiffs'

motion to file a second amended complaint.12 We disagree.

We review the allowance of a motion to dismiss de novo.

See A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay

Transp. Auth., 479 Mass. 419, 424 (2018). We take all

allegations in the complaint as true and draw all reasonable

inferences in the plaintiffs' favor. See Iannacchino v. Ford

Motor Co., 451 Mass. 623, 625 n.7 (2008). To survive at the

motion to dismiss phase, the plaintiff's complaint must contain

"allegations plausibly suggesting (not merely consistent with)"

an entitlement to relief, and "must be enough to raise a right

to relief above the speculative level." Id. at 636, quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007).

a. Breach of contract and legal malpractice claims.

Counts I and XI of the second amended complaint allege that the

plaintiffs contracted Hausler to represent them in the

acquisition of and financing for various real estate properties,

12In granting Hausler's motion, the judge considered the
claims against Hausler in O'Neil's proposed second amended
complaint after noting that O'Neil moved to file the second
amended complaint against Hausler in response to Hausler's
motion to dismiss the amended verified complaint. The judge
then denied the motion to file the second amended complaint
because the averments contained in the revised complaint did not
survive Hausler's motion to dismiss; thus, allowing the motion
would have been futile. See Chang v. Winklevoss, 95 Mass. App.
Ct. 202, 212 (2019) ("An amended complaint is futile if the
amended claims would not survive a motion to dismiss for failure
to state a claim").

10
and that Hausler committed a breach of his contract to provide

legal services when he later represented the Gaudet defendants

without obtaining the plaintiffs' written consent. The judge

properly dismissed the plaintiffs' breach of contract and legal

malpractice claims, concluding that the complaint failed to

state how Hausler's failure to obtain the plaintiffs' written

consent caused harm.

To prevail on a claim for breach of contract, the plaintiff

is required to demonstrate that "there was an agreement between

the parties; the agreement was supported by consideration; the

plaintiff was ready, willing, and able to perform his or her

part of the contract; the defendant committed a breach of the

contract; and the plaintiff suffered harm as a result." Bulwer

v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016).

A legal malpractice claim is a hybrid cause of action,

incorporating elements of both contract and tort. See McStowe

v. Bornstein, 377 Mass. 804, 807 (1979). Regardless of whether

a legal malpractice claim arises from contract or tort, the

plaintiff must sufficiently plead a causal connection to the

conduct and the harm alleged. See Greenspun v. Boghossian, 95

Mass. App. Ct. 335, 339 (2019). The violation of a disciplinary

or ethical rule "is not itself an actionable breach of duty to a

client." Fishman v. Brooks, 396 Mass. 643, 649 (1986).

Further, while violation of a canon of ethics or disciplinary

11
rule intended to protect someone in the plaintiffs' position may

provide some evidence of negligence, a plaintiff still must

establish that the defendant's negligence caused harm. See

McCann v. Davis, Malm & D'Agostine, 423 Mass. 558, 559-560

(1996).

The plaintiffs allege that Hausler had "conflicting

interests" and represented the parties "without proper

disclosures, consents, and not in compliance with the Canons of

Ethics and Code of Professional Responsibility Rule 1.7." By

failing to obtain written consent, the plaintiffs argue, Hausler

"was not able to provide competent and diligent representation."

Yet, nowhere do the plaintiffs plausibly state how Hausler's

alleged breach or legal malpractice caused plaintiffs any harm,

only that "the Plaintiffs have suffered damages and are

continuing to suffer damages." Such conclusory claims are

insufficient to survive a motion to dismiss. "[W]e look beyond

the conclusory allegations in the complaint and focus on whether

the factual allegations plausibly suggest an entitlement to

relief." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676

(2011). Accordingly, these claims were properly dismissed.

b. Breach of covenant of good faith and fair dealing

claim. Count II of the second amended complaint alleges that

Hausler breached the covenant of good faith and fair dealing in

"failing to provide competent and diligent legal representation

12
that represented the Plaintiffs' best interest." "The covenant

of good faith and fair dealing is implied in every contract

. . ." (citation omitted). Weiler v. PortfolioScope, Inc., 469

Mass. 75, 82 (2014). It is well settled in Massachusetts that

"[t]he scope of the [implied] covenant is only as broad as the

contract that governs the particular relationship" and does not

"create rights and duties not otherwise provided for in the

contract" (quotation and citations omitted). Chokel v. Genzyme

Corp., 449 Mass. 272, 276 (2007). As with their breach of

contract and legal malpractice claims, the plaintiffs failed to

articulate any damages caused by the alleged breach of the

implied covenant. See Bulwer, 473 Mass. at 690. Therefore, we

see no error in the dismissal of this claim.

c. Misrepresentation/fraud claim. "To sustain a claim of

misrepresentation, a plaintiff must show a false statement of a

material fact made to induce the plaintiff to act, together with

reliance on the false statement by the plaintiff to the

plaintiff's detriment." Zimmerman v. Kent, 31 Mass. App. Ct.

72, 77 (1991). To sustain a fraud claim, on the other hand, a

plaintiff must also establish that the defendants made a false

statement of material fact with knowledge of its falsity. See

Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455 Mass.

458, 471 (2009). Here, Count IV asserts a claim against Hausler

for misrepresentation/fraud, alleging that the defendants made

13
misrepresentations of material fact to the plaintiffs, including

that (1) the "[Gaudet defendants] would not retain more than the

agreed loan amount plus interest and points for each of the

loans," and (2) "the Defendants were the owners of the

properties and had the right to use and occupy the properties."

The first representation, that the Gaudet defendants would

adhere to the terms of the loan agreement, "falls within the

ordinary rule that false statements of opinion, of conditions to

exist in the future, or of matters promissory in nature" fail to

support a claim of fraud or misrepresentation. Yerid v. Mason,

341 Mass. 527, 530 (1960). See Hogan v. Riemer, 35 Mass. App.

Ct. 360, 365 (1993) ("Statements of expectation . . . do not

support an action for common law fraud"). As such, the

statement was not one on which the plaintiffs could reasonably

rely and was not actionable. Moreover, the second amended

complaint does not allege that Hausler knew the Gaudet

defendants would not perform their end of any agreement.

The second statement fares no better. Hausler, as counsel

on behalf of the Gaudet defendants, denied the existence of an

oral agreement and any rights of the plaintiffs to the

properties in response to a demand letter from O'Neil's

attorney, during either the pendency of a separate eviction

action against O'Neil or as initial communications in this case.

We agree with the judge that Hausler's statements in the letter

14
are protected by the litigation privilege. The privilege

applies to communications made preliminary to, or in the course

of, judicial proceedings. See Sriberg v. Raymond, 370 Mass.

105, 109 (1976); Doe v. Nutter, McClennen & Fish, 41 Mass. App.

Ct. 137, 140 (1996). Since Hausler made the statements in his

function as the Gaudet defendants' attorney in a communication

preliminary to litigation, the privilege applies, and the

statements cannot support the plaintiffs' misrepresentation and

fraud claims against Hausler.

d. Breach of fiduciary duty claim. Count V alleges that

Hausler committed a breach of his fiduciary duties to the

plaintiffs by conspiring with the Gaudet defendants to commit a

breach of the parties' agreements. To state a claim of civil

conspiracy, the plaintiff must show "an underlying tortious act

in which two or more persons acted in concert and in furtherance

of a common design or agreement." Bartle v. Berry, 80 Mass.

App. Ct. 372, 383-384 (2011). "Key to this cause of action is a

defendant's substantial assistance, with the knowledge that such

assistance is contributing to a common tortious plan." Kurker

v. Hill, 44 Mass. App. Ct. 184, 189 (1998). Here, the

plaintiffs' conspiracy claim fails because the second amended

complaint does not allege facts suggesting Hausler's knowledge

of or assistance with the alleged tortious acts of the Gaudet

defendants. The second amended complaint likewise lacks

15
sufficient facts to support the plaintiffs' breach of fiduciary

duty claim against Hausler.

e. Chapter 93A claim. Count XII alleges that Hausler's

conduct constituted "unfair and deceptive acts or practices"

under G. L. c. 93A. "Although whether a particular set of acts,

in their factual setting, is unfair or deceptive is a question

of fact . . . the boundaries of what may qualify for

consideration as a c. 93A violation is a question of law"

(citation omitted). Milliken & Co. v. Duro Textiles, LLC, 451

Mass. 547, 563 (2008). To determine if a practice is unfair, we

consider "(1) whether the practice . . . is within at least the

penumbra of some common-law, statutory, or other established

concept of unfairness; (2) whether it is immoral, unethical,

oppressive, or unscrupulous; and whether it causes

substantial injury to consumers (or competitors or other

businessmen)" (citation omitted). PMP Assocs., Inc. v. Globe

Newspaper Co., 366 Mass. 593, 596 (1975).

Here, the judge first concluded that the Chapter 93A claim

was not viable because it was derivative of the other claims.

On its own, this conclusion would not be a valid reason to

dismiss the Chapter 93A claim. See Slaney v. Westwood Auto,

Inc., 366 Mass. 688, 693 (1975). However, the judge did not end

her analysis there, pointing out that mere negligence or a

breach of contract alone does not constitute a Chapter 93A

16
violation. See Beverly v. Bass River Golf Mgt., Inc., 92 Mass.

App. Ct. 595, 606 (2018) ("Appellate courts have consistently

held that a mere breach of contract, without more, does not

amount to a violation of G. L. c. 93A"); Squeri v. McCarrick, 32

Mass. App. Ct. 203, 207 (1992) ("A negligent act standing by

itself does not give rise to a claim under c. 93A"). The judge

found that the second amended complaint failed to articulate any

conduct by Hausler that was immoral, unethical, or unscrupulous.

We see no reason to disturb the judge's findings. Finally,

assuming for the sake of argument that Hausler did act

unethically, the second amended complaint fails to allege how

that unethical conduct caused the plaintiffs' harm. See

Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790,

798 (2006).

Conclusion. The appeal from the Superior Court order dated

July 30, 2024, vacating the preliminary injunction and

dissolving the lis pendens, is dismissed. The separate and

17
final judgment dismissing the claims against Hausler is

affirmed.

So ordered.

By the Court (Sacks, Smyth &
Wood, JJ.13),

Clerk

Entered: March 24, 2026.

13 The panelists are listed in order of seniority.

18