ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY
MaryGay Kennedy Judge.
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
Factual and Procedural Background
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.
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.)
Standard of Review
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.
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.
Limiting Damages to Actual Economic Harm
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.
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.)
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, ...