Klein v. Hallett

• Court: Superior Court of Maine
• Decided: August 30, 2022
• Docket: CUMcv-22-1
• Status: Unpublished

Opinion

STATE OF MAINE SUPERlOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-22-1

MARK KLEIN,

Plaintiff V. ORDER

THOMAS HALLETT, ESQ., et al., Plaintiff-Jeffrey Bennett, Esq. Defendants Defendants-Sigmund Schutz, Esq.

Before the court is a motion by defendants Thomas Hallett, Daniel Feldman, and Hallett

Whipple & Weyrens (collectively, the "Hallett defendants") to dismiss Counts III and IV of

plaintiff Mark Klein's complaint. Count III is a claim for intentional infliction of emotional

distress. Count IV is a claim for negligent infliction of emotional distress.

In response to that motion, Klein filed a motion to amend his complaint, adding a number

of factual allegations and also seeking to add a claim under the Maine Unfair Trade Practices Act.

The Hallett defendants oppose the motion to amend to the extent that the proposed amended

complaint reiterates Counts III and IV on the ground that the proposed amended complaint does

not cure the legal infirmity of his original Counts III and IV. The Hallett defendants do not oppose

the proposed amendment adding an Unfair Trade Practices claim.

Discussion

Under M.R.Civ.P. 15(a) leave to amend shall be freely given when justice so requires.

However, leave to amend may be denied when the amendment will be futile. Montgomery v. Eaton

Peabody LLP, 2016 ME 44 ~ 13, 135 A.2d 106. In this case the Hallett defendants argue that the

HUG 31 ~22 AM8: 12 proposed amendments are futile because they do not remedy the legal infirmity of Klein's

intentional and negligent infliction claims.

In Garlandv. Roy, 2009 ME 86 'i['i[24-26, 976 A.2d 940, the Law Comtruled that emotional

distress damages can only be recovered in a legal malpractice action when the plaintiff proves not

just economic losses but "egregious actions" by the defendant attorney 1 or incurs personal losses

such as damage to reputation or deterioration of the plaintiffs marriage.

In his proposed amended complaint Klein has alleged that the Hallett defendants

committed serious legal malpractice and breaches of fiduciary duty, egregiously disregarding the

potential consequences of their actions and by taking advantage of Klein's vulnerabilities, with

resulting harm to his reputation and his relationship with his children, along with certain economic

losses. These allegations are sufficient to support a claim for emotional distress damages in

addition to economic damages under Garland v. Roy.

'Under these circumstances, however, Klein's negligent infliction of emotional distress

(NIED) claim will be subsumed in any award of damages for his professional negligence. See

Curtis v. Porter, 2001 ME 158 'ii 19, 784 A.2d 18. 2 Accordingly, Klein's NIED claim has no

independent legal standing, and his motion to amend to reassert Count IV will be denied.

1 "Egregious" actions by an attorney appear to include intentionally causing harm to the client, untmthful statements to the client by the attorney, and wanton or willful disregard by the attorney of the consequences of the attorney's actions. See 2009ME86126.

2 In some cases NIED claims may have allowed when there is a "special relationship" between plaintiff and defendant. Id. at n.17. That issue has arisen in cases where no other separate tort is alleged. See B1yan R. v. Watchtower Bible and Tract Society, 1999ME144118, 738 A.2d 839. Separate torts are alleged against the Hallett defendants in this case, and allowing an additional free-standing claim for negligent infliction of emotional distress would potentially circumvent the directive of Garland v. Roy that emotional distress damages are not recoverable in legal malpractice actions unless egregious behavior or appropriate non-economic hmm is shown.

2 Klein's intentional infliction of emotional distress (IIED) claim stands on a different

footing. The elements of an IIED claim are that (1) the defendant intentionally or recklessly

inflicted severe emotional distress or was substantially certain that such distress would result; (2)

the conduct was so "extreme and outrageous as to exceed all possible bounds of decency and must

be regarded as atrocious, utterly intolerable in a civilized society;" (3) the actions caused the

plaintiffs emotional distress; and (4) the emotional distress was so severe that no reasonable

person could have been expected to endure it. Curtis v. Porter, 2001 ME 158 1 10, quoting

Champagne v. Mid-Maine Medical Center, 1998 ME 87115, 71 A.2d 842.

Klein's proposed amended complaint adequately alleges all of the necessary elements of

an IIED claim. With some justification, the Hallett defendants question whether, even accepting

all the allegations in the proposed amended complaint as true, the Hallett defendants are alleged

to have engaged in extreme, outrageous, and atrocious conduct exceeding all possible bounds of

decency and utterly intolerable in a civilized society. They are correct that the issue of whether

alleged conduct is sufficiently extreme or outrageous to meet the necessary standard is an issue for

the court to determine in the first instance. E.g., Champagne v. Mid-Maine Medical Center, 1998

ME 87 116. However, that is not an issue that should be decided based on the pleadings but must

await summary judgment or trial.

The Hallett defendants also question whether the alleged emotional distress suffered by

Klein meets the standard of distress so severe that no reasonable person might be expected to

endure it. Again, whether sufficiently severe emotional distress can be found based on the evidence

is an issue for the court to determine in the first instance. Restatement (Second) of Torts § 46,

comment j. But that will depend on the evidence and cannot be determined on the face of the

proposed amended complaint.

3 It is also true that the alleged actions relied upon by Klein in alleging extreme and

outrageous conduct on his IIED claim are the exact same actions he relies on in alleging that the

professional negligence of the Hallett defendants was "egregious" under Garland v. Roy. Any

emotional distress damages recovered on these claims will be the same, and Klein will not be

entitled to double his emotional distress damages. But that is also an issue that may be addressed

at a later stage in the case.

The entry shall be:

1. Defendants' motion to dismiss Count IV of plaintiffs complaint is granted.

2. Plaintiffs motion to amend is denied with respect to the reassertion of Count IV of his proposed amended complaint. In all other respects, plaintiffs motion to amend is granted.

3. Within 14 days of the date of this order, Plaintiff shall serve the proposed amended complaint annexed to plaintiffs motion, after excising ,r,r 68-76. Defendants shall have 14 days from service of the amended complaint to respond.

4. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: August3..

Thomas D. Warren Active Retired Justice, Superior Court

Entered on the Docket: OB/3th~