Ford v. Henry I. Shanoski, LLC

• Court: Superior Court of Maine
• Decided: November 14, 2006
• Docket: CUMcv-06-375
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. RE r^, -4;J,;: DONALD L. GARBRECHT LAURIE FORD LAW LIBRARY

Plaintiff JAN 1 7 2001 ORDER ON DEFENDANT'S v. MOTION FOR JUDGMENT ON THE PLEADINGS HENRY I. SHANOSKI, LLC

Defendant

Before the Court is Defendant Henry I. Shanoslu, LLC's ("Defendant")

motion for judgment on the pleadings pursuant to M.R. Civ. P. 12(c).

BACKGROUND

The present lawsuit arises out of events surrounding a prior suit brought

by Plaintiff Laurie Ford ("Plaintiff") for damages from injuries suffered in a

motor vehicle accident that occurred in Lewiston, Maine on June 9, 2001. Plaintiff

retained the services of Defendant to represent her in that suit against Morgan

Reeder ("Reeder"), the driver of the other car.

During Defendant's representation of Plaintiff he sought and received

permission to serve process by publication and, when Reeder did not file an

answer, obtained a default judgment in favor of Plaintiff. Subsequently, Reeder

successfully moved to vacate the default judgment. Plaintiff alleges that the

default judgment being vacated was the result of professional negligence on

Defendant's part. Specifically, Plaintiff alleges that:

(1) Defendant failed to take appropriate steps to serve process on the defendant in the underlying litigation (including negligence with respect to adhering [to] the rules governing service by publication under Rule 4(g) of the Maine Rules of Civil Procedure), Morgan Reeder, and, in fact, ignored information in his possession relating to the defendant's declaration to the United States Postal Service that his proper address was in Lewiston; (2) Defendant failed to submit the mandated military affidavit (Rule 55(b)(4) affidavit) with the default judgment filing; and (3) Defendant's malfeasance and nonfeasance resulted in the Court vacating the default judgment in the approximate amount of $110,000.

(Pl.'s Opp'n to Def's Mot. J. on Plead. At 1-2.)

Following these developments, Plaintiff terminated the services of

Defendant and retained a new attorney to represent her for the duration of the

lawsuit. Prior to trial, Plaintiff settled her case, receiving significantly less money

than she would have received in the default judgment.

DISCUSSION

I. Standard of Review

A "motion for judgment on the pleadings is the functional equivalent of a

motion to dismiss for failure to state a claim." Stevens v. Bouchard, 532 A.2d 1028,

1029 (Me. 1987). The Court must "examine the complaint in the light most

favorable to the plaintiffs to determine whether it alleges the elements of a cause

of action or facts entitling the plaintiffs to relief on some legal theory" and

"assume that all factual allegations in the complaint are true." Id. at 1030.

11. Matters Outside the Pleadings

As an initial matter, Defendant's motion is styled one for judgment on the

pleadings, but he makes clear that to the extent he raises issues outside the

pleadings he moves in the alternative for summary judgment. T h s request can

be quickly disposed of. It is within the Court's discretion to treat a motion for

judgment on the pleadings as a motion for summary judgment if "matters

outside the pleadings are presented to and not excluded by the court." M.R. Civ.

P. 12(c). If this action is taken, the motion is then "disposed of as provided in Rule 56, and all parties shall be gven reasonable opportunity to present all

material made pertinent to such a motion by Rule 56." Id. Defendant filed no

statement of material facts with his brief as required by M.R. Civ. P. 56(h)(l).As

a result, the Court cannot, based on the materials filed with the present motion,

treat Defendant's motion as one for summary judgment. Further, discovery has

yet to be conducted by either side. Even if Defendant had included a statement of

material facts, a motion for summary judgment at this juncture would be

inappropriate. As a result, Defendant's motion shall be treated solely as one for

judgment on the pleadings and any matters outside the pleadings shall be

excluded for purposes of this motion. Should Defendant wish to file a motion for

summary judgment conforming to the requirements of the Maine Rules of Civil

Procedure he may do so at an appropriate time.

111. Legal Malpractice

"In legal malpractice cases, the plaintiff must show (1)a breach by the

defendant attorney of the duty owed to the plaintiff to conform to a certain

standard of conduct; and (2) that the breach of the duty proximately caused an

injury or loss to the plaintiff." Niehoffv. Sharzkman & Associates Legal Center, P.A.,

2000 ME 214, ¶ 7, 763 A.2d 121, 124. To satisfy the proximate cause element of

legal malpractice, a plaintiff must show that she "could have been successful in

the initial suit [without her attorney's negligence]." Jourdai~zv. Dirzeen, 527 A.2d

1304, 1306 (Me. 1987). "The plaintiff must therefore submit proof of that claim to

the jury as a 'trial wittun a trial' of the attorney malpractice action." Id.

A. No Duty Following Withdrawal

Defendant's first argument for judgment on the pleadings is that he owed

no duty to Plaintiff following his termination and that termination of the attorney-client relationship before final resolution of a client's personal injury

case acts as a bar to any cause of action for malpractice subsequently initiated by

a client against that attorney. Defendant notes that "[ilt would present a perverse

state of affairs if a trial court could permit trial counsel to withdraw . . . and then

that attorney became an 'insurance policy' for the former client, after that former

client settled for a lesser amount than what she believed was due." Bright v. Zega,

186 S.W.3d 201,205 (Ark. 2004).

Defendant's argument misconstrues either the nature of the negligence

alleged by Plaintiff or the precedent he cites. Bright was a case where a plaintiff

claimed that the prior lawyer withdrawing from representation was itself

negligence resulting in a lower recovery than would have been achieved had that

lawyer stayed on as counsel. Bright was decided against the plaintiff in that case

because the lawyer's withdrawal was approved by the court based on plaintiff's

own misbehavior and because doing so would not push back the expected trial

date. Id. Similarly, all the other cases cited by Defendant for the proposition that

withdrawal from a case bars a later legal malpractice suit by a client involve

situations where the alleged malpractice was the withdrawal itself. See Patton v.

Turnage, 580 S.E.2d 603 (Ga. Ct. App. 2003); Keywell I3 Rosenfeld v. Bithell, 657

N.W.2d 759 (Mich. Ct. App. 2002); Lifsclzultz Fast Freight v. Haynsworth, Marion,

McKay I3 Guerard, 486 S.E.2d 14 (S.C. Ct. App. 1997).

In the present case, Plaintiff does not argue that Defendant's withdrawal

constituted malpractice. Rather, the alleged malpractice occurred significantly

before Defendant's withdrawal when he made procedural mistakes leading to

the District Court vacating a default judgment in Plaintiff's favor. It would

indeed be "a perverse state of affairs" if a lawyer who commits malpractice is shielded from a lawsuit predicated on that malpractice by being fired and

replaced with new counsel.

B. N o Causal Link Between Defendant's Malpractice and Final Outcome

Defendant argues that even if he was negligent, there is no causal link

provable between that negligence, which occurred prior to his withdrawal as

counsel, and the final settlement of the case, which occurred while Plaintiff was

represented by new counsel. Plaintiff argues that this case is similar to one

involving a prisoner who brought a legal malpractice claim against an attorney

who the prisoner had fired prior to pleading guilty while represented by new

counsel. See Fleming v. Gardner, 658 A.2d 1074, 1077 (Me. 1997). In that case, the

court ruled that "[tlhe record is bare of any evidence that [the prisoner's]

incarceration and resulting damages, if any, were proximately caused by the

claimed failure of the [prior attorney] to properly represent him." Id. Defendant

analogizes Fleming to the present case, stating that because Defendant was

discharged prior to Plaintiff's settlement, entered into under the advice of new

counsel, Defendant's alleged negligence did not proximately cause any damages

resulting from that settlement.

Fleming is distinguishable. In Fleming, the negligence alleged by the

plaintiff was that the defendant lawyer failed to comply with plaintiff's request

that there be a motion filed for change of venue. Id. at 1076. The damage

resulting from this alleged negligence was that plaintiff entered a plea of guilty.

Id. Following discharge of the defendant lawyer, however, plaintiff hired a new

lawyer who filed successful motions both to withdraw plaintiff's guilty plea and

for a change of venue. Id. at 1076-77. Subsequently, plaintiff pled guilty to all

charges against him. Id. at 1077. As a result, in that case any negligence allegedly had raised ineffective assistance of counsel, involving identical issues to the

malpractice claim, in an unsuccessful post-conviction review proceeding. Brewer,

2001 ME 27, ¶ 8,771 A.2d at 1033. Brewer is inapposite as the issues raised by the

plaintiff's post-conviction review argument o n ineffective assistance of counsel

were identical to those that might have been raised in a malpractice case.

Defendant does not allege that the issue of his negligence has been decided in his

favor i n any other judicial proceeding.

Further, there is n o support for the proposition that Plaintiff's settlement

of her cause of action collaterally estops her from arguing that her claim would

have resulted i n a higher recovery absent Defendant's negligence. The value of a

case can vary over time. It is possible that, as a result of the delay i n final

adjudication of the case, developments unrelated to the substantive merits of

Plaintiff's cause of action transpired that reduced the value of that case as of the

time of the settlement compared with what it would have been i n the absence of

the vacated default judgment.' On a motion for judgment o n the pleadings, it is

unnecessary for Plaintiff to describe evidence that might be presented to support

her cause of action. It is enough to withstand judgment o n the pleadings for

' For instance, it is possible that a key witness for Plaintiff moved such that Plaintiff would have been required to pay for round trip airfare and hotel accommodations in order to secure that witness's testimony. Such financial factors could have convinced Plaintiff to settle her underlying case whereas she would not have done so if there had been no delay related to the vacated default judgment. It is also possible that Plaintiff will be able to produce evidence showing that even had Reeder been properly served and all appropriate procedural rules complied with, either Reeder would not have responded and default judgment would have been the result or Reeder would have responded and a judgment of $1 10,000 would still have been entered. If Plaintiff can prove this at trial, her measure of damages could be the difference between the default judgment award and her eventual settlement. While a conceivable harm is sufficient for Plaintiff to withstand the present motion for judgment on the pleadings, at trial it will be necessary for Plaintiff to present admissible evidence regarding precisely how Plaintiff was damaged by Defendant's alleged negligence, committed by the original lawyer was cured when plaintiff's new lawyer filed

the successful motions to withdraw plaintiffs guilty plea as well as to change

venue. Therefore, there was no connection between plaintiff's subsequent guilty

plea and any alleged negligence of his prior lawyer.

In contrast, in this case Defendanfs alleged negligence led to a default

judgment entered on Plaintiff's behalf being vacated. In order for this case to be

analogous to Fleming, Plaintiff's new counsel would have needed to have that

default judgment reinstated. T h s did not happen. Talung all factual allegations

in Plaintiff's complaint as true, Plaintiff's negligence led to the District Court

vacating its default judgment in Plaintiff's favor and the subsequent lesser

recovery for Plaintiff in her settlement. As a result, judgment on the pleadings

based on an absence of proximate cause is inappropriate.

C. Collateral Estoppel

Collateral estoppel is a doctrine by which parties who have litigated an

issue are precluded from relitigating that same issue in a subsequent action.

Brmer v. Hagernann, 2001 ME 27, ¶ 8, 771 A.2d 1030, 1033. Defendant notes that a

plaintiff in a legal malpractice action normally is required to present a "case

within a case" in whch the plaintiff must prove that she would have obtained a

better result had it not been for her lawyer's negligence. Defendant asserts,

however, that this process is unnecessary in the present case because Plaintiff in

voluntarily settling her action has admitted the value of her claim and is now

estopped from arguing that it is worth more than she received in the settlement.

Defendant cites as support for this position a case in whch the Court held that a

client was collaterally estopped from relitigating whether his former attorney's

negligence resulted in a conviction. There, the client was estopped because he Plaintiff to plead, as she did here, that a better result would have been reached in

her case b u t for DefendanY s negligence.2

The entry is:

Plaintiff's motion for judgment o n the pleadings is DENIED.

Dated a t Portland, Maine this 17' d a y of /\/n L, 2006.

Justice, Superior c o u r t

While collateral estoppel and judicial estoppel are not identical in application, the reasoning behind denying judgment on the pleadings on the basis of collateral estoppel is also applicable to Defendant's judicial estoppel argument. Specifically, it is not necessarily inconsistent for Plaintiff to have reached a settlement of her case following Defendant's negligence in the underlying case here and subsequently to argue that Plaintiffs negligence nevertheless caused her to suffer damages. COURTS d County x 287 3 041 12 0287

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