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Brooks v. Lemieux

Supreme Court of Maine

March 21, 2017


          Argued: November 8, 2016

          Anthony J. Sineni III, Esq. (orally), Law Offices of Anthony J. Sineni III, Portland, for appellant Thomas M. Brooks

          Martha C. Gaythwaite, Esq. (orally), and Marie J. Mueller, Esq., Verrill Dana, LLP, Portland, for appellee John R. Lemieux


          HUMPHREY, J.

         [¶1] Thomas M. Brooks appeals from a summary judgment entered in the Superior Court (Cumberland County, L. Walker, J.). The court concluded that Brooks failed to present prima facie evidence of causation to proceed with his legal malpractice and other tort claims against John R. Lemieux. We affirm the judgment.

         I. BACKGROUND

         [¶2] "Viewing the record in the light most favorable to the non-prevailing part[y], the summary judgment record contains the following facts, which are undisputed unless otherwise noted." Estate of Frost, 2016 ME 132, ¶ 2, 146 A.3d 118 (quotation marks omitted).

         [¶3] Brooks was employed at Bath Iron Works (BIW) from 1979 until his termination in 2006 following BIW's determination that Brooks had failed in his job performance and had violated the conditions of a "Last Chance Agreement." Brooks unsuccessfully grieved the termination. After the Local S7 Union Grievance Committee voted not to arbitrate his grievance, Brooks hired Attorney John R. Lemieux. In February 2007, Brooks, represented by Lemieux, filed a complaint in the United States District Court for the District of Maine against the Union and BIW alleging claims for breach of the collective bargaining agreement and discrimination. BIW and the Union moved for summary judgment.

         [¶4] In opposing the motions, Lemieux failed to timely file opposing statements of material facts: Lemieux filed the opposition to the Union's facts one day late and filed a motion to enlarge the time to respond to BIW's facts more than thirty days late.[1]

         [¶5] The magistrate judge [Rich, Mag.) issued a recommended decision granting a summary judgment in favor of BIW and the Union. The recommended decision noted numerous instances in which Lemieux failed to cite to record evidence in Brooks's statement of additional material facts as well as the opposing statement of material facts, which were thus deemed admitted. The court [Singal, J.) affirmed the magistrate judge's recommended decision. The First Circuit Court of Appeals affirmed.

         [¶6] On June 27, 2014, Brooks filed the action at issue in this appeal in the Superior Court alleging claims against Lemieux for legal malpractice, breach of fiduciary duty, and negligent infliction of emotional distress. Brooks alleged that, in the federal case, Lemieux breached the professional standard of care applicable to attorneys by failing to (1) timely file responses to statements of material fact supporting summary judgment, (2) follow Local Rule 56 governing statements of fact, (3) obtain affidavits from witnesses, and (4) conduct adequate discovery.

         [¶7] On August 5, 2015, Lemieux moved for summary judgment on all claims. After a hearing on January 8, 2016, the court granted the motion and issued a written order entering a summary judgment in Lemieux's favor, concluding that Brooks failed to put forth prima facie evidence of causation for several reasons. First, Lemieux's failure to oppose BIW's statement of material facts was not causally related to the entry of summary judgment because the federal court relied entirely on the Union's facts, and Lemieux's opposition to those facts, although untimely, was considered by the court. Second, even accepting that Lemieux failed to timely oppose the statements of fact, follow the Local Rule regarding record citations, obtain adequate affidavits, and conduct adequate discovery, Brooks did not identify what evidence should have been cited, what affidavits should have been obtained, and what discovery should have been conducted, leaving a fact-finder to speculate about any causal link between the alleged negligence and the injury. Third, Brooks failed to submit admissible expert testimony to support the causation element of his tort claims. The court refused to consider an affidavit by Attorney Julie Moore in which she opined that but for Lemieux's negligence, Brooks would have prevailed in the federal case.[2] The court concluded that the affidavit contradicted Moore's deposition testimony[3] and, citing the rule announced in Zip Lube, Inc. v. Coastal Savings Bank, held that the affidavit was insufficient to generate a disputed issue of material fact. 1998 ME 81, ¶ 10, 709 A.2d 733 ("When an interested witness has given clear answers to unambiguous questions, he ...

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