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Conway v. White

Superior Court of Maine, Androscoggin

September 19, 2016

PATRICK CONWAY, Plaintiff,
v.
JEFFREY WHITE, ESQ., Defendant.

          ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          MaryGay Kennedy Judge.

         Defendant Jeffrey White, Esq. moves for partial summary judgment related to the damage claims of Plaintiff Patrick Conway in his complaint against White for negligence, breach of fiduciary duty and intentional infliction of emotional distress. The court has reviewed the parties' filings and held a hearing on the motion on August 30, 2016. Based on the following, White's motion is denied in part and granted in part.

         I. Factual and Procedural Background

         In 2013, Plaintiff Conway hired Defendant White to represent him in a legal dispute involving the purchase and sale of land (Def.'s Reply S.M.F. ¶ 1.) On January 8, 2014, a judgment was entered against Conway in the amount of $230, 372.50. (Supp.'g S.M.F. ¶ 3.) After a disclosure hearing on June 10, 2014, Conway was ordered to pay this judgment to the opposing party via monthly payments of $250. (Id. ¶ 8.) The court in the disclosure hearing did not find that Conway had insufficient income or property for the court to order payment of the judgment against him. (Id.)

         On March 31, 2015, Conway filed a complaint against White which contained three counts: (I) negligence, (II) breach of fiduciary duty, and (III) intentional infliction of emotional distress, alleging that the adverse judgment in the underlying purchase and sale of land case was caused by White's alleged failure to respond to a motion for summary judgment by the plaintiff in that case. (Id. ¶ 11.) The damages listed in Counts I and II include economic damages, emotional distress, property loss, lost profits, and attorney's fees and costs. (Pl.'s Compl. ¶¶ 12, 16.) On April 13, 2015, White filed an answer that included the affirmative defense of uncollectability. (Def.'s Ans. 4). On May 16, 2016, White filed a motion for partial summary judgment asking the court to: (1) limit Conway's damage claims to actual economic harm: and (2) bar Conway from recovering damages for emotional distress. (Def.'s Mot. Partial Summ. J. 1.)

         II. Standard of Review

         Summary judgment is appropriate, if based on the parties' statement of material facts and the cited record, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Beal v. Allstate Ins. Co., 2010 ME 20, ¶ 11, 989 A.2d 733; Dyer v. Deft of Transport, 2008 ME 106, ¶ 14, 951 A.2d 821. "[A] fact is material if it could potentially affect the outcome of the case." Reliance Natl Indent, v. Knowles Indus. Sews., 2005 ME 29, ¶ 7, 868 A.2d 220. A genuine issue of material fact exists where the fact finder must choose between competing versions of the truth. Id. (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶20, 817 A.2d 871). When deciding a motion for summary judgment, the court reviews these materials in the light most favorable to the non-moving party. Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821.

         On a motion for summary judgment in which the defendant asserts an affirmative defense, the defendant has the ultimate burden of establishing there is no dispute as to a material fact regarding the elements of the affirmative defense. See Baker v. Farrand, 2011 ME 91, ¶ 31, 26 A.3d 806.

         III. Discussion

         a. Limiting Damages to Actual Economic Harm

         The Law Court has recognized the doctrine of "uncollectability, " whereby a plaintiff-client cannot recover for malpractice against their former attorney unless they experienced a loss as a result of the representation provided by the attorney in the underlying case. Jourdain v. Dineen, 527 A.2d 1304, 1306 (Me. 1987). The Court has recognized two classes of malpractice lawsuits where collectability is relevant. In the first, there is "no damage flowing from the malpractice" unless the former client can show that absent the attorney's malpractice, the original lawsuit would have resulted in recovery. Thurston v. Cont'l Cas. Co., 567 A.2d 922, 924 n.2 (Me. 1989). In the second, as is the situation here, there is already a judgment against the plaintiff-former client, and the defendant-lawyer must show that despite the judgment against the client, there is no damage to the client. Id. Uncollectibility is an affirmative defense, with the burden of proof on the defendant. Jourdain, 527 A.2d at 1306. The actual harm to the former client, not the judgment, is the measure of damages. Thurston, 567 A.2d at 924-925. But, a lack of economic harm does not foreclose the possibility of other kinds of damages. Id. at 924.

         Here, White asks that Conway's damages be limited to the "amount of collectible judgment, " which he defines as the $250 per month that Conway was ordered to pay by the disclosure court, instead of the full amount of the judgment. (Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. Partial Summ. }. 2.) The sole fact on which White relies to support that the full judgment is uncollectible is the disclosure hearing order that required Conway to pay $250 per month in satisfaction of the debt to the plaintiff in the underlying lawsuit. The disclosure court examined Conway's income tax returns, proof of vehicle ownership, W-2s, copies of any leases, deeds, mortgages, and current bank statements from business and personal accounts. (Supp.'g S.M.F. ¶ 5-7.) Conway attended disclosure hearings on March 11, 2014 and April 15, 2014, and a final hearing on June 10, 2014 when the monthly payments were ordered. (Id. ¶¶ 6-8.) Importantly, the disclosure court did not find that Conway does not have sufficient income or property for the court to order payment or reduce the amount of the judgment. (Id. ¶ 8.) And, Conway has been making the monthly payments. (Id. ¶ 9.) Conway argues that he is not insolvent, has not filed for bankruptcy, and that the disclosure order could be changed to increase his payments were he to come into money. (Pl.'s Opp'n to Def.'s Mot. Partial Summ. J. 4.)

         Viewing the cited record evidence in the light most favorable to the non-moving party, White has not shown there is a genuine dispute as to the collectability of the judgment against Conway. And, even if the facts were sufficient to a support a genuine dispute as to the collectability of the existing judgment against Conway, the Law Court has held that the uncollectability of economic damages does not foreclose the possibility of other kinds of damages. Thurston, 567 A.2d at 924. Therefore, ...


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