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Levesque v. Lilley

Superior Court of Maine, Cumberland

September 2, 2016

PAUL LEVESQUE, et al, Plaintiffs
v.
DANIEL G. LILLEY, ESQ., et al, Defendants

          ORDER

          Thomas D. Warren Justice

         Before the court is a motion by plaintiffs-counterclaim defendants Paul and Ida Levesque for summary judgment on the remaining issue in the case - the amended counterclaim by defendant Daniel G. Lilley Law Offices P.A seeking to collect its share of the contingent fee obtained after a settlement of the Levesques' claim against Central Maine Medical Center.

         As set forth in the court's order dated February 11, 2016 all the other claims in this case have been settled.

         Summary Judgment

         Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.

         Proceedings Leading to the Amended Counterclaim

         The following facts are based on factual assertions that are not disputed in the summary judgment record and on the Law Court's decision in Levesque v. Central Maine Medical Center, 2012 ME 109, 52 A.3d 933.

         On February 28, 2007 the Levesques entered a contingent fee agreement with Daniel G. Lilley Law Offices P.A (Lilley Law Office) to pursue claims against Central Maine Medical Center (CMMC) based on alleged malpractice while Paul Levesque was an inpatient at CMMC following surgery in April 2007. Plaintiffs/Counterclaim Defendants' Statement of Material Facts dated June 25, 2016 (Levesque SMF) ¶¶ 10, 12-14 (admitted). The contingency fee agreement is Exhibit 7 to the Levesque SMF.

         A notice of claim was filed on October 26, 2007 naming CMMC and Dr. Alan Ingraham, the surgeon. 2012 ME 109 ¶ 7. The case then proceeded to a panel hearing that resulted in findings on November 26, 2008. 2012 ME 109 ¶ 8.

         On behalf of the Levesques, the Lilley Law Office thereafter filed a complaint in the Androscoggin Superior Court on December 15, 2008. Levesque SMF ¶ 28 (admitted). The panel hearing and certain initial aspects of the lawsuit were handled by Christian Foster, an associate at the Lilley Law Office. Levesque SMF ¶¶ 24, 34 (admitted).

         John Flynn, Esq., became employed by the Lilley Law Office in early February 2009 and at some point began working on the Levesque case. Levesque SMF ¶ 37 (admitted).

         In February 2010 the court granted a motion for summary judgment filed by Dr. Ingraham. Levesque SMF ¶ 40 (admitted). In July 2010 the case went to trial against CMMC. Flynn was the only lawyer from the Lilley Law Office who appeared for the Levesques at the trial. Levesque SMF ¶ 42 (admitted with the qualification that Flynn was employed by the Lilley Law Office at the time of the trial).

         One issue at the trial was whether the Levesques would be allowed to pursue a claim that Dr. Pamela Rietschel had been negligent and that CMMC was responsible for her negligence on a theory of apparent agency. 2012 ME 109 ¶¶ 10, 12. Dr. Rietschel had not been named in the notice of claim and the Law Court later stated that the Levesques did not dispute that Dr. Rietschel's alleged negligence had not been presented to the panel. 2012 ME 109 ¶¶ 8 & n.4, 10.

         The trial court allowed the Levesques to proceed on a theory that CMMC was responsible for negligence on the part of Dr. Rietschel as an apparent agent of CMMC. 2012 ME 109 ¶ 12. The jury returned a verdict finding that Dr. Rietschel was an agent of CMMC, that CMMC and its employees and agents were negligent, and that the CMMC nurses were negligent. The Jury awarded the Levesques $420, 000 in damages. Levesque ¶ 43 (admitted); Special Verdict Form attached as Exhibit 6 to Levesque SMF.

         CMMC appealed to the Law Court. While CMMC's appeal was pending, Flynn left employment with the Lilley Law Office effective July 1, 2011. Levesque SMF ¶ 45 (admitted). Shortly thereafter, the Levesques terminated their representation by the Lilley Law Office and were thereafter represented by Flynn, who briefed and ...


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