Abraham v. Broaddus

• Court: Superior Court of Maine
• Decided: August 5, 2021
• Docket: CUMcv-20-059
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-20-059

MEMANAABRAHAM,and ALEYEMMA ABRAHAM

Plaintiffs ORDER V.

ANDREW BROADDUS

Defendant

This matter comes before the court on Defendant, Andrew Broaddus' Motion for Summary

Judgment. After due consideration, Defendant's Motion is granted. Because the Defendant's

Motion for Summary Judgment has been granted, Plaintiffs' Motion for Partial Summary

Judgment is denied.

I. Factual Background

Defendant is an attorney licensed to practice law in the state of Maine. Plaintiffs, Memana

and Aleyemma Abraham, hired the Defendant to represent the Plaintiffs in various property and

debt collection matters in September, 2015. These matters included: ( 1) collection of unpaid rent

under a commercial tenancy with Awakening Recovery Center; (2) exploration of legal remedies

stemming from the Plaintiffs' purchase of 94 Pierce St., Westbrook Maine, in 2010; and (3)

prosecuting a lawsuit against Viking Restoration LLC. The instant lawsuit alleges that Defendant

was negligent and breached his fiduciary duty to the Plaintiffs during his representation in these

matters.

A. Awakening Recovery Center Docket: . 0.& h~l::i~

1 Plaintiffs leased commercial property to Chastain Darling, doing business as Awakening

Recovery Center, from August 15, 2014 to July 31, 2015. (DSMF 1 2, Exhibit 2.). Christian

Darling was the sole proprietor of Awakening Recovery Center. (DSMF 13.) The lease between

Plaintiffs and Awakening Recovery Center states that Christian Darling was personally responsible

for any unpaid rent under the lease. (DSMF 14, Exhibit 2 § 17.) Plaintiffs hired the Defendant in

September 2015 in an attempt to recover unpaid rent and damages allegedly owed by Christian

Darling under the terms of the commercial lease. (DSMF 11 I, 5.) Defendant prepared and sent

a demand letter to Christian Darling on behalf of the Plaintiffs claiming unpaid rent and damages.

(DSMF 1 5.) The Defendant determined that, in his opinion, Christian Darling was uncollectable

and chose not to file a lawsuit in the matter. (DSMF 1 6). The Plaintiffs allege that Awakening

Recovery Center is now defunct and that Defendant's failure to initiate a lawsuit constitutes

professional negligence and a breach of fiduciary duty.

B. 94 Pierce St.

Plaintiffs purchased property located at 94 Pierce St., Westbrook Maine, from Michael

Lydon by Warranty Deed on January 13, 2010. (DSMF 19.) Plaintiffs did not retain an attorney

to represent them in the purchase of the property. (DSMF 110.) Plaintiffs engaged Fidelity Title,

who in turn hired an attorney, Tom Powers, with the expectation that Fidelity would perform a

title search on the property. (Abraham Dep. pg. 39 11 10-20.) The Plaintiffs have no written

agreement indicating that Fidelity or Attorney Powers was going to search for defects in the

property's title on the Plaintiffs' behalf. (Abraham Dep. pg.431115-19.) The Plaintiffs did not

obtain or review a title opinion on the property or perform any survey or review the property deed

prior to the purchase of the property. (DSMF 1111-14; Abraham Dep. pg.4211 5-13.) The

Plaintiffs now claim that there are various defects in the Warranty Deed obtained from Michael

2 Lyden which have reduced the value of the property. Defendant concluded, in his professional

opinion, that the property does not have a defect involving a lot line and that there is insufficient

evidence to suggest that the property is unbuildable or materially reduced in value. (DSMF ,r,r 15­

16.)

The building situated on 94 Pierce St. was destroyed by afire in 2015. (DSMF ,r 22, Exhibit

22.) The Plaintiffs later discovered that the building was actually situated on a portion of the

abutting property. (Id.) Defendant submitted a title insurance claim on Plaintiffs' behalf to First

American Title Insurance Company on April 28, 2016, which sought to recover the policy limit

under their title insurance policy. (DSMF ,r 22.) First American denied the claim. (DSMF ,r 23.)

The Defendant did not initiate a lawsuit against First American, Fidelity Title, attorney Powers, or

Michael Lyden. The Plaintiffs claim that the statute oflimitations to bring a lawsuit has run against

several of these individuals and that Defendant's failure to act constitutes professional negligence

and a breach of fiduciary duty.

C. Viking Restoration

The Plaintiffs hired the Defendant to bring a civil action against Viking Recovery Center

LLC. (DSMF ,r,r 25-26.) Defendant commenced a civil action in the Cumberland County Superior

Court on Plaintiffs' behalf on August 6, 2018. (DSMF ,r 27.) It appears that the Defendant did

not attempt to obtain a pre-judgment security in the lawsuit. Viking Restoration filed for

bankruptcy in March 2019, while the Plaintiffs' lawsuit was still pending. (DSMF ,r 31.)

Defendant filed a notice of claim on behalf of the Plaintiffs in the bankruptcy proceeding and

participated in the Bankruptcy Action. (DSMF ,r,r 31-32.) Deposition testimony suggests that the

Plaintiffs received some payment out of the Bankruptcy Action. (Broaddus Dep. pgs. 108-109).

However, Plaintiffs allege that the Defendant's failure to seek pre-judgment security in the civil

3 action filed in Cumberland County, prior to the Bankruptcy Action, constitutes professional

negligence and a breach of fiduciaty duty.

D. Procedural History

The Defendant filed this Motion for Sununaty Judgment on January 25, 2021. The

Plaintiffs failed to timely respond to Defendant's Motion and, for reasons fully explained in this

court's previous Procedural Order, the court denied Plaintiff's Motion for Enlargement of Time to

respond to the Motion. The Plaintiff has also filed his own Motion for Partial Sununary Judgment

on April 16, 2021 seeking judgment on the elements of breach of duty and causation. Even though

the court has ruled that Plaintiff's response is untimely, the court must still look to Defendant's

Motion for Sununary Judgment and the record in support to determine whether the Defendant has

shown that he is entitled to judgment as a matter of law.

II. Discussion

A. Defendant's Motion for Summary Judgment

A party is entitled to sununaty judgment when review of the parties' statements of

material facts and the record to which the statements refer, demonstrates that there is no genuine

issue as to any material fact in dispute. Dyer v. Dep 't ofTransp., 2008 ME 106, ,r 14, 951 A.2d

821; M.R. Civ. P. 56(c). A contested fact is "material" if it could potentially affect the outcome

of the case. Id. A "genuine issue" of material fact exists if the claimed fact would require a

factfinder to "choose between competing versions of the truth." Id. (quotations omitted). The

court reviews the evidence in the light most favorable to the non-moving party. Id. A

defendant moving for a summaty judgment has the initial burden to establish that there was no

genuine dispute of material fact and that the undisputed facts entitled it to a judgment as a matter

of law. It is then the plaintiffs burden to make out a prima facie case for each claim and

4 demonstrate that a genuine dispute of material fact exists as to each. Waugh v. Genesis

Healthcare LLC, 2019 ME 179, ,r9.

1. Professional Negligence

"Professional negligence, in the context of a legal malpractice action, is failure to use such

skill, prudence and diligence as is reasonable according to the standards of ordinarily competent

lawyers performing similar services under like conditions." Pawlendzio v. Haddow, 2016 ME

144, ,r 11, 148 A.3d 713. To prove such malpractice, the plaintiff must show: (1) breach by the

defendant of that duty of care and (2) that the breach of that duty proximately caused an injury or

loss to the plaintiff. See Pawlendzio, 2016 ME 144, ,r 11, 148 A.3d 713. "[T]he plaintiff must

present expert testimony 'to establish the appropriate standard of care and whether an attorney

breached that standard of care, except when the breach or lack thereof is so obvious that it may be

determined by a court as a matter of law or is within the ordinary knowledge of laymen."

Pawlendzio, 2016 ME 144, ,r 12, 148 A.3d 713; quoting Kurtz & Perry, P.A. v. Emerson, 2010

ME 107, ,r 26, 8 A.3d 677; see also Pitt v. Frawley, 1999 ME 5, ,r 9, 722 A.2d 358 ("It is beyond

dispute that expert testimony is required to establish the requisite standard of care for determining

the alleged [legal] malpractice in question.")

The plaintiff must also provide expert testimony to establish a causal link between the

negligent act and injury alleged. See Brooks v. Lemieux, 2017 ME 55, ,r 14, 157 A.3d 798; see

also Pawlendzio, 2016 ME 144, ,r 15, 148 A.3d 713. To establish a causal link, the "plaintiff must

demonstrate that he or she would have achieved a more favorable result but for the defendant's

alleged legal malpractice." Niehoffv. Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, ,r 9,

763 A.2d 121.

5 In regard to Awakening Recovery Center, the Defendant sent a demand letter to

Awakening Recovery's sole proprietor, Christian Darling, who is personally responsible for the

unpaid rent. The Defendant ultimately concluded that Christian Darling was judgment proof on

that claim and chose not to file a lawsuit. The statute of limitations for an action against Christian

Darling did not expire until March, 2021 and at the time that this suit was filed, Plaintiff still had

time to commence suit against Darling. 1

The Defendant here has made the requisite showing for summary judgment purposes. ,He

has put facts on the record that he made a judgment call. Furthermore, because suit could still be

filed. Therefore, there was no evidence of damages. 2

At this point, the burden rests on the Plaintiff to establish a prima facie case. Because the

court did not allow the late response to the summary judgment motion, there is no expert testimony

establishing what duty of care the Defendant owed to the Plaintiffs under these circumstances or

whether the Defendant's actions breached that duty of care. Moreover, there is no expert testimony

in the summary judgment record establishing that the Plaintiffs would have received a more

favorable result had the Defendant filed a lawsuit against Awakening Recovery Center prior to its

dissolution or that the same recovery, if such was warranted, could not have been obtained against

Christian Darling personally.

In regards to 94 Pierce St., the Defendant's Statement of Material Facts establishes that the

Defendant was not involved with the purchase of the property, and after the structure on the

property was destroyed, filed a claim on Plaintiffs behalf with First American Title Insurance

1 The facts giving rise to a potential cause of action against Christian Darling arose in March, 2015. The Plaintiffs had six years from that date to file a lawsuit. See 14 M.R.S. § 752. 2 The court does not suggest that there is no legal malpractice claim any time the statute of limitations has yet to run.

In this case, it is enough for the Defendant to meet his burden when filing a summary judgment motion. The burden is the Plaintiff to then make out the prima facie case.

6 Company. Plaintiff still has the opportunity to file suit on the claims against the title insurance

company and against the seller on the breach of warranty claims. The Defendant established that

there was no evidence that the property had lost value.

The Defendant's showing is sufficient to place the burden on the Plaintiff to establish a

genuine issue of material fact with respect to liability and causation. In this case, expert testimony

would be necessary to establish both liability and causation. For the reasons already described,

there is no such record for the court to consider here.

In regard to the Viking Restoration LLC matter, the Plaintiffs' theory is that the Defendant

breached the duty of care owed when he failed to secure a pre-judgment attachment in the action

against the LLC before it filed for bankruptcy. In his Statement of Material Facts, Defendant

makes no reference to a motion for prejudgment attachment. In his brief, Defendant argues simply

that the Rules do not require a motion for attachment. Similarly, the Defendant makes no effort to

explain why there is no causation as a matter of law. Therefore, the Defendant has not met his

initial burden to show why he is entitled to summary judgment as a matter of law.

It is true that here is no expert testimony in the summary judgment record either

establishing that seeking pre-judgment security was the standard practice that the Defendant

should have observed under the circumstances or establishing that the Plaintiffs would have

actually achieved a more favorable result had the Defendant sought pre-judgment security.

Nevertheless, because Defendant failed to meet his initial burden, the court denies summary

judgment to the extent it seeks recovery arising from Defendant's representation in the Viking

restoration matter.

7 2. Breach ofFiduciary Duty

In a professional negligence claim, "the same rules of causation generally apply whether

the cause of action sounds in contract, negligence, or breach of fiduciary duty." Niehoff v.

Shankman & Assocs. Legal Ct., P.A., 2000 ME 214, ,r 8, 763 A.2d 121; see also Lemieux, 2017

ME 55, ,r 7 n.4, 157 A.3d 798 (upholding the trial court's grant of summary judgment on the

"derivative torn claim[]" of breach of fiduciary duty for failure to produce prima facie evidence of

causation.) For the same reasons as the court granted summary judgment on the professional

negligence claim for the Awakening Recovery Center and the 94 Pierce St. issues and denied

summary judgment on the Viking Restoration claim, the court dies the same with the breach of

fiduciary duty claim.

B. Plaintiff's Motion for Partial Summary Judgment.

The Plaintiff filed a motion for partial summary judgment with respect to liability. The

Defendant did not respond, so the court reviews the motion as unopposed. First, however, the

court reviews the Plaintiffs motion to see if he met his initial burden. The initial burden for a

Plaintiff bearing the burden ofproof when filing a motion for summary judgment is higher. "When

the plaintiff is the moving party on a motion for summary judgment, the plaintiff has the burden

to demonstrate that each element of its claim is established without dispute as to material fact

within the summary judgment record." North Star Capital Acquisition, LLC v. Victor, 2009 ME

129, lJ 8,984 A.2d 1278. Because the court has granted summary judgment against the Plaintiff

on the Awakening Recovery Center and the 94 Pierce St. claims, the Plaintiffs Summary

Judgment Motion is moot and the court denies the motion with respect to those claims.

With respect to the Viking Restoration Claim, the court examines the Plaintiffs Statement

of Material Facts to determine if the Plaintiff has met his initial burden. the Plaintiffs Statement

8 of Material Facts, ,r 61, notes that Defendant made the decision not to pursue a prejudgment

attachment. That implies a judgment call was made. The court does not find, based on the motion,

that the Plaintiff has shown that decision was professional malpractice as a matter of law. In

addition, nothing in the Plaintiff's Statement of Material Facts establishes causation. Specifically,

had counsel moved for an attachment, there is no evidence that he would have been successful, or

if successful, that assets would have been available to satisfy a judgment. Therefore, the court

denies the Plaintiffs Motion for Summary Judgment.

VI. Conclusion

The entry is:

Defendant's Motion for Summary Judgment on Counts I and II is GRANTED in part and

DENIED in part, as explained by this Order.

Plaintiffs' Motion for Partial Summary Judgment is DENIED.

Maine Rule of Civil Procedure 79(a).

Date: August_{_, 2021

Thomas McKeon Justice, Superior Court