## Facts

- Jean P. Clark, an experienced real estate investor, suffered substantial losses tied to refinancing a loan secured by property in Haverhill, Massachusetts.
- Clark retained attorney Harvey F. Rowe, Jr. in connection with the refinancing and dealt with banker Shawn Potter regarding related financing matters.
- Clark claimed Rowe committed legal malpractice and related fiduciary breaches in the refinancing transaction and that Potter engaged in negligence or misconduct.
- At trial, the judge directed a verdict for Potter.
- The case against Rowe went to the jury on special verdict questions.
- The jury found Rowe was negligent and that his negligence substantially contributed to some of Clark’s losses, but also found Clark negligent in the same transaction.
- The jury apportioned fault 70% to Clark and 30% to Rowe.

## Issues

1. Whether Clark preserved for appellate review an objection that comparative negligence is legally inapplicable to an attorney-malpractice action (including one framed as breach of fiduciary duty).
2. Whether the trial judge properly entered judgment for Rowe based on the jury’s apportionment of fault under Massachusetts comparative negligence law.
3. Whether the directed verdict for Potter was properly affirmed.

## Decision

- The Supreme Judicial Court affirmed judgment for Rowe.
- The court held Clark did not preserve a legal challenge to the comparative-negligence instruction because her trial objection addressed only the claimed lack of evidence of her negligence, not the applicability of comparative fault as a matter of law.
- Applying Massachusetts modified comparative negligence (G.L. c. 231, § 85), the court treated comparative fault as properly part of the case; with Clark found 70% at fault, recovery was barred.
- The court affirmed the directed verdict and judgment for Potter, concluding the record did not warrant submitting claims against him to the jury.
- The court did not decide whether comparative negligence is categorically applicable (or inapplicable) to legal malpractice claims, because the issue was procedurally defaulted.

## Legal Principles

- A party may not claim instructional error on appeal unless it objected before the jury retired, stating distinctly the matter objected to and the grounds for the objection.
- An objection asserting insufficient evidence does not preserve a different appellate argument that a legal doctrine is inapplicable as a matter of law.
- Under Massachusetts modified comparative negligence, a plaintiff more negligent than the defendant is barred from recovery.
- A contributory-negligence instruction may be warranted where evidence supports the plaintiff’s own unreasonable conduct contributing to the loss, including where the plaintiff is a sophisticated participant in the underlying transaction.
- A directed verdict is proper where the evidence, viewed favorably to the plaintiff, still fails to present a jury-worthy claim of duty and breach.

## Conclusion

The court affirmed defense judgments because Clark failed to preserve a legal objection to applying comparative negligence in her malpractice case, and the jury’s finding that she bore more fault than her attorney barred recovery under Massachusetts comparative negligence law; the directed verdict for the banker was also upheld for lack of a triable claim.


Clark v. Rowe, 428 Mass. 339 (1998)