D. Warren Justice
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.
forth in the court's order dated February 11, 2016 all
the other claims in this case have been settled.
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
Leading to the Amended Counterclaim
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.
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.
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.
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).
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).
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).
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,
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.
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 ...