Liberty v. Van Dyke

• Court: Superior Court of Maine
• Decided: December 5, 2007
• Docket: CUMcv-06-677
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION / PO~~T NO. CYfJ~-677 J t',' I i,-, (,' ( '\ 'II l009 JUN 25 A g: I I

SCOTT LIBERTY, Plaintiff o '- iRDERON v. ;;; ~ ~EFENDANTS' I~ ~ ~ECOND MOTION FOR DAVID VAN DYKE and BERMAN & SIMMONS, P.A., ~ 1 ~UMMARY JUDGMENT :g ::tJ::tJ Defendants Q: -<§8 m C) :r: -I

Before the Court is Defendants David Van Dyke and Berman & Simmons,

P.A.'s Second Motion for Summary Judgment on all counts of Plaintiff Scott

Liberty's Second Amended Complaint.

BACKGROUND From approximately October 2000 through January 2002, Defendants

Berman & Simmons, P.A. and David Van Dyke ("Van Dyke"), an attorney with

the firm, (collectively, the "Defendants") represented Plaintiff Scott Liberty

("Liberty") in Liberty's divorce proceedings. Various orders were entered by the

Superior Court in 2001, including three orders based on a divorce settlement

agreement entered into between Liberty and his now ex-wife. These orders

concern parental rights and responsibilities, property distribution, and support

obligations, inter alia. Among other things, these orders bar Liberty from having

any contact with any of his three children without leave from the Court and

approval by his now ex-wife.

After the third of these orders was issued, Liberty sought to set aside or

modify the judgment due in part to his claim that Attorney VanDyke agreed to the settlement agreement that is the foundation of the third order without

Liberty's authority. The Superior Court (Cole, J.) held an eleven-day trial on the

matter in January 2004 and ultimately upheld the 2001 orders in an order issued

in November 2004. The Law Court later affirmed this decision.

It is primarily with respect to these three 2001 orders and the events

surrounding their issuance that Liberty now alleges legal malpractice against the

Defendants. Liberty asserts five counts against the Defendants: breach of

fiduciary duty, negligence, negligent infliction of emotional distress, intentional

misrepresentation, negligent misrepresentation; he also asserts two alternative

counts. 1 Liberty's alleged harm and damages include lost time with his children,

irreparable damage to his relationship with his children, emotional distress,

damage to his reputation and various pecuniary losses. He also seeks punitive

damages. The Defendants filed their First Motion for Summary Judgment in

2007 arguing that Liberty's claims are barred by the doctrines of collateral

estoppel and judicial estoppel. This Court (Crowley, J.) denied that Motion in

December 2007. The Defendants have now filed this Second Motion for

Summary Judgment on all counts of Liberty's Second Amended Complaint.

STANDARD OF REVIEW

Summary judgment is proper where there exist no genume issues of

material fact such that the moving party is entitled to judgment as a matter of

law. M.R. Civ. P. 56(c); Arrow Fastener Co., Inc. v. Wrabacon, Inc., 2007 ME 34,

15, 917 A.2d 123, 126. "A court may proper!y enter judgment in a case when the

I These two alternative counts are for breach of fiduciary duty and negligence relating to legal services rendered and actions taken by the Defendants during the time period when Liberty was a psychiatric inpatient at McLean Hospital in Belmont, Massachusetts.

2 parties are not in dispute over the [material] facts, but differ only as to the legal

conclusion to be drawn from these facts." Tondreau v. Sherwin-Williams Co., 638

A.2d 728, 730 (Me. 1994). A genuine issue of material fact exists "when the

evidence requires a fact-finder to choose between competing versions of the

truth." Farrington's Owners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93 fJI 9,

878 A.2d 504, 507. An issue of fact is material if it "could potentially affect the

outcome of the suit." Id. An issue is genuine if "there is sufficient evidence to

require a fact-finder to choose between competing versions of the truth at trial."

Lever v. Acadia Hosp. Corp., 2004 ME 35, fJI 2, 845 A.2d 1178, 1179. If ambiguities

exist, they must be resolved in favor of the non-moving party. Beaulieu v. The

Aube Corp., 2002 ME 79, fJI 2, 796 A.2d 683, 685. In response to a defendant's

motion for a summary judgment, a plaintiff having the burden of proof at trial

must produce evidence that, if produced at trial, would be sufficient to resist a

motion for judgment as a matter of law. Northeast Coating Technologies, Inc. v.

Vacuum Metallurgical Co., Ltd., 684 A.2d 1322, 1324 (Me. 1996).

DISCUSSION

I. Defendants' Motion for Summary Judgment

The Defendants have filed both a Renewed Motion for Summary

Judgment and a Supplemental Motion for Summary Judgment as part of their

Second Motion for Summary Judgment. The Defendants have three primary

arguments: first, that Liberty's legal malpractice claims are barred by the doctrine

of collateral estoppel; second, that Liberty cannot prove causation; and, third,

that Liberty is not entitled to punitive damages. The Court will address each of

these arguments in turn.

3 A. Collateral Estoppel

The Defendants renew the arguments made in their First Motion for

Summary Judgment that Liberty's claims are barred by the doctrine of collateral

estoppel. For the reasons stated in this Court's previous Order, it denies the

Defendants' Motion for Summary Judgment on the basis of collateral estoppeU

B. Causation

In order to make out a claim for legal malpractice, a plaintiff must show

(1) that his attorney breached 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. Niehoff v. Shankman & Associates Legal

Center, P.A., 2000 ME 214,

professional malpractice cases where 'evidence and inferences that may

reasonably be drawn from the evidence indicate that the negligence played a

substantial part in bringing about or actually causing the injury or damage and

that the injury or damage was either a direct result or a reasonably foreseeable

consequence of the negligence.'" [d.

Wanger, 2000 ME 159,

not sufficient. [d. A plaintiff alleging malpractice must also show that he would

have achieved a more favorable result but for the alleged malpractice. [d.

757 A.2d at 124. These rules of causation apply regardless of whether the

2 To reiterate, the Defendants concede that Liberty did not raise any legal malpractice claims at any time prior to the current action nor was he required to do so. As such, the question of the Defendants' alleged malpractice was not "necessarily ... determined by a prior final judgment" and collateral estoppel is not applicable. See Larochelle v. Hodsdon, 1997 ME 53, 'II 11, 690 A.2d 986, 988-89 (quoting Mutual Fire Ins. Co. v. Bragg, 589 A.2d 35, 37 (Me. 1991)).

4 malpractice cause of action sounds in contract, negligence or breach of fiduciary

duty. [d. c:rr 8, 757 A.2d at 124.

In Corey v. Norman, Hanson & DeTroy, the plaintiff sued the law firm that

represented her in her divorce alleging that the firm committed malpractice by

stipulating to the value of a marital asset that the plaintiff claimed was too low.

1999 ME 196, c:rrc:rr 2-3, 742 A.2d 933, 935-36. The law firm moved for summary

judgment on the basis that the plaintiff could not prove that her damages were

proximately caused by an act or omission by the firm. [d. c:rr 4, 742 A.2d at 936.

The Law Court agreed with the firm:

In order to avoid a summary judgment on NH&D's challenge to the sufficiency of Corey's evidence regarding proximate causation, Susan must show through expert testimony that the divorce judgment would have been more favorable to Susan if the value of the dental practice had been shown to be higher than the $37,700 agreed on by NH&D, i.e., that NH&D's negligence resulted in the divorce judgment being less favorable to her.. .susan's Rule 7(d)(2) statement points to no admissible evidence to prove it more likely than not that the divorce judgment would have been more favorable to Susan if the value of the dental practice was shown to exceed the $37,700 value agreed on by NH&D. Nadeau [the plaintiff's expert] makes a general statement that he would testify about proximate cause, but he does not offer an opinion that the trial court would have accepted the higher value of the dental practice, or that if the court accepted a higher value, it would have awarded any part of the increase to Susan, or that if it did award a part of the increase to Susan, such increase would not be offset by a less favorable award of alimony. Such evidence is essential to Susan's case, see Marshak v. Ballesteros, 72 Cal. App. 4th 1514, 86 Cal. Rptr. 2d 1,3-4 (Cal. Ct. App. 1999).

[d. c:rrc:rr 13-14, 742 A.2d at 940 (internal citations omitted).

In Marshak, the Court of Appeal of California held that a plaintiff asserting

legal malpractice in a divorce action "must prove what the better outcome would

have been" without the alleged malpractice. 72 Cal. App. 4 th 1514, 86 Cal. Rptr.

2d 1, 3. The Marshak court acknowledged that there were triable issues as to

5 whether the attorneys had breached the standard of care, but held that summary

judgment was nevertheless proper "because of the absence of evidence of

damages resulting from the alleged malpractice." Id. The court continued,

"[d]amages may not be based upon sheer speculation or surmise, and the mere

possibility or even probability that damage will result from wrongful conduct

does not render it actionable." Id. at 4 (quoting In re Easterbrook, 200 Cal. App. 3d

1541, 1544 (1988)) (internal quotations omitted).

The Defendants, perhaps utilizing the framework established in Corey,

conflate proximate cause and damages in the instant case. That is, the

Defendants argue that Liberty has not produced evidence of causation but their

arguments actually speak to the issue of Liberty's inability to prove his losses as

a result of the alleged malpractice. In support of their position, the Defendants

point to Attorney Rubin's statements that it is not possible for him to know

exactly what the trial judge would have ordered if not for the alleged negligence.

Liberty emphasizes other statements in which Attorney Rubin states that it is his

opinion that Liberty would have had a more favorable outcome but for Attorney

Van Dyke's alleged malpractice: "And I suspect based on my years of [sic] in

domestic relations cases that a different result would have occurred." Rubin's

Deposition 55:21-23; "And I do believe that if that [the appointment of a guardian

ad litem] would have taken place, any Justice would have been influenced by

those recommendations and opinions." Id. 75:17-19; "I have said very dearly

that Judge Cole would have been influenced by a guardian's report and

recommendations. I cannot say with certainty what he would have accepted, but

I do believe it is more probable than not that he would have - he would not have

- if this was his independent order, not just a settlement agreement, but if it was

6 his independent order, he would not have placed Darlene [Liberty's ex-wife] in

that place. And he would have done different." Id. 81:19-82:3; "If your client

[i.e., Attorney Van Dyke] had done what I have articulated, the steps that have

led up to this, I don't believe Justice Cole would have ever entered that order."

Id.182:19-22.

These statements are insufficient to prove damages proximately caused by

the Defendants. Indeed, in the statements highlighted by Liberty, Attorney

Rubin admits that he "cannot say with certainty what [the trial judge] would

have" done in the absence of the alleged malpractice. Liberty's ability to prove

his losses in the instant case is further eroded by the Law Court's recent decision

affirming the District Court's grant of an extension of a protection from abuse

order to Liberty's ex-wife and children against Liberty for a term of six years

until January 2013. See Copp v. Liberty, 2008 ME 97, _ A.2d_.

Attorney Rubin states that the trial court would not have entered the

orders it did but for Attorney Van Dyke's alleged negligence; but Attorney Rubin

does not (and admits that he cannot) identify Liberty's losses. There is no

evidence or even an allegation that Liberty's ex-wife would have accepted a

settlement agreement different from the one she signed. Nor can Liberty's expert

state what the trial court would have done in the absence of a settlement

agreement between the parties. With respect to Attorney Van Dyke's alleged

negligence in failing to have a guardian ad litem appointed in 2001, perhaps the

source of the largest number of Liberty's complaints of malpractice, there is no

evidence as to what a guardian ad litem would have found or recommended

7 with respect to Liberty's interactions with his children? Even if the guardian ad

litem had issued a report favorable to Liberty, there is no evidence that the trial

judge would have accepted the recommendations. Finally, with respect to

Liberty's allegations that Attorney Van Dyke intended to defraud the trial court

in 2001 by filing a Rule 60(b) motion on the basis of newly-discovered evidence

when in fact Attorney Van Dyke knew of this evidence before the entry of the

divorce judgment, even if this Court were to accept these allegations as true,

there is no evidence to show and no expert to testify that the property division

would have been more favorable to Liberty but for the alleged fraud.

As Liberty has provided no evidence of the amount or value of his losses

as a result of the alleged negligence, he cannot show that the divorce judgment

(including property division and child custody / parental rights issues) would

have been different let alone more favorable. The Law Court has stated that the

inability of a malpractice suit plaintiff to show that the divorce judgment would

have been different entitles the defendant to judgment as a matter of law. Corey,

1999 ME 196, err 14, 742 A.2d at 940.

C. Punitive Damages

As the Court grants summary judgment in favor of the Defendants for the

reasons set forth supra, it need not and does not reach the Defendants' argument

that Liberty is not entitled to punitive damages.

3 This is particularly true given that, prior to the issuance of the three orders in 2001, Liberty had been convicted on multiple counts of domestic abuse, was forbidden from having contact with his ex-wife and children both as a probation condition and as a result of a protection from abuse order issued by the District Court, and Liberty's ex-wife had filed a complaint asserting spousal tort claims against him.

8 II. Defendants' Motion to Strike

On June 13, 2008, Liberty filed a Motion for Leave to File a Supplemental

Brief in Opposition to Defendants' Supplemental Motion for Summary

Judgment. The Court granted this Motion on June 13, 2008. That same day, the

Defendants filed a Motion to Strike Liberty's supplemental brief. The Court

denies the Defendants' Motion to Strike.

Therefore, the entry is:

Defendants David Van Dyke and Berman & Simmons, P.A.'s Second Motion for Summary Judgment is GRANTED. Judgment for the Defendants.

Defendants David Van Dyke and Berman & Simmons, P.A.'s Motion to Strike Plaintiff Scott Liberty's supplemental brief is DENIED.

The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Dated at Portland, Maine this 2lfK day of -~L~""",,,,~~'l....._---" 2008.

9 )F COURTS .and County Box 287 line 04112-0287

JOHN BRANSON ESQ PO BOX 7526 PORTLAND ME 04112

r vUUHI~ md County ~ox 287 ne 04112-0287

MARK RANDALL ESQ 183 MIDDLE ST 4TH FLOOR PORTLAND ME 04112

MARTHA GAYTHWAITE ESQ ROGER BRUNELLE ESQ FRIEDMAN GAYTHWAITE WOLF & LEAVITT PO BOX 4726 PORTLAND ME 04112