Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

MSR Recycling LLC v. Weeks and Hutchins LLC

Superior Court of Maine, Kennebec

November 9, 2018

MSR RECYCLING LLC, FRED BLACK PROPERTIES LLC, and FRED BLACK Plaintiffs
v.
WEEKS AND HUTCHINS LLC, and MATTHEW E. CLARK Defendants

          Attorney for: MSR RECYCLING LLC, PHILLIP E. JOHNSON, JOHNSON WEBBERT & YOUNG LLP.

          Attorney for: FRED BLACK PROPERTIES LLC, PHILLIP E. JOHNSON, JOHNSON WEBBERT & YOUNG LLP

          Attorney for: WEEKS AND HUTCHINS LLC WENDELL LARGE, RICHARDSON WHITMAN LARGE & BADGER.

          Attorney for: WEEKS AND HUTCHINS LLC JOHN WHITMAN, RICHARDSON WHITMAN LARGE & BADGER.

          DECISION AND JUDGMENT

          William R. Stokes, Justice.

         INTRODUCTION AND PROCEDURAL BACKGROUND

         Before this Court for decision is the motion for summary judgment filed by Weeks and Hutchins, and Matthew E. Clark (collectively "Defendants"). This dispute involves an attorney malpractice claim against the Defendants by MSR Recycling LLC, Fred Black Properties, and Fred Black (collectively "Plaintiffs"). The Plaintiffs commenced this action on February 6, 2017, by filing a three-count complaint alleging that (1) Clark was negligent in failing to file a brief on behalf of Plaintiffs in a Rule 8OB matter; (2) that Weeks and Hutchins is vicariously liable for Clark's negligence; and (3) that Clark acted, or omitted to act, with express or implied malice. On January 18, 2018, Defendants filed their Motion for Summary Judgment and the Plaintiffs timely opposed. Weeks and Hutchins has admitted vicarious liability. Oral argument on this motion was held on September 4, 2018.

         The undisputed material facts are taken from the summary judgment record and are summarized below.

         FACTS

         In January 2012 the Plaintiffs filed a site review application with the Town of Madison for approval of a so-called "feeder lot" which would essentially hold flattened old vehicles, scrap metals, and white goods[1] for a short period of time until the materials were transported to MSR's recycling facility in Winslow. After numerous hearings and meetings, the Madison Planning Board ("Board") approved the Plaintiffs' application on October 5, 2012. At these meetings and hearings, Fred Black testified that stoves, refrigerators, and scrap iron would be collected at the site before being loaded into trailers or containers destined for the Winslow facility. A large machine, called a Terex Fuchs material handler, was to be located outdoors on a concrete slab and would load flattened vehicles and the aforementioned white goods and scrap iron into the trailers and containers. After the Board's approval, neighbors to the feeder lot site appealed the Board's decision to the Madison Board of Appeals ("BOA"). Shortly after the decision was appealed, Plaintiffs retained Matthew Clark, an associate with Weeks & Hutchins, to represent them in connection with the appeal.

         On December 6, 2012, the BOA held a meeting, took new evidence by way of testimony and exhibits, and reversed the Board's decision. The BOA determined that the site the Plaintiffs had applied for would not be a "feeder lot," but instead a recycling center, automobile graveyard, or a junkyard. The BOA determined that the Board's decision was not supported by substantial evidence to conclude that the location would be a "feeder site" for temporary storage only.

         After the reversal, Clark timely filed a Rule 80B appeal of the BOA's decision in Somerset County Superior Court. Clark did not, however, file a brief in support of the appeal. After the deadline for the brief had passed, the neighbors who originally appealed the Board's decision filed a Motion for Default and to Dismiss the appeal as interested parties. The Court ordered the Plaintiffs to show cause for their failure to file a brief and why the appeal should not be dismissed. Clark made no response to the Court's Order and did not further prosecute the appeal. The Court dismissed the Plaintiffs' Rule 8OB appeal on April 20, 2013. Over the next several months, Clark did not inform the Plaintiffs of this course of events and avoided phone calls from Fred Black. Ultimately, in October 2013, the Plaintiffs fired Clark and retained new counsel who informed them that their appeal had been dismissed in April.

         SUMMARY JUDGMENT STANDARD OF REVIEW

         "The function of a summary judgment is to permit a court, prior to trial, to determine whether there exists a triable issue of fact or whether the question[s] before the court [are] solely ... of law." Bouchard v. American Orthodontics, 661 A.2d 1143, 1144 (Me. 1995). "A trial court properly grants summary judgment for the movant if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Beaulieu v. Aube Corp., 2002 ME 79, ¶ 14, 796 A.2d 683 (citing Stanton v. University of Maine Sys., 2001 ME 96, ¶ 6, 773 A.2d 1045). A "material fact" is one that can affect the outcome of the case, and a genuine issue exists when there is sufficient evidence for a fact-finder to choose between competing versions of the facts. Lougee Conservancy v. City-Mortgage, Inc., 2012 ME 103, ¶ 11, 48 A.2d 774.

         DISCUSSION

         The Plaintiffs argue that had Clark prosecuted the appeal the Superior Court would have reviewed the Board's decision because that was the operative decision according to the Town's ordinances, and upheld it as it was supported by substantial evidence. They argue that the BOA was not authorized to hear additional evidence. They support this position with expert testimony. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.