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Nicholas v. McKee

Superior Court of Maine, Kennebec

August 26, 2019

LINUS NICHOLAS, individually and as Personal Representative of the ESTATE of JACQUELINE CHILDS and as assignee of the rights of the ESTATE of JACQUELINE CHILDS, Plaintiff
v.
WALTER F. MCKEE and MCKEE BILLINGS, P.A., Defendants

          DECISION AND ORDER

          William R. Stokes Justice, Superior Court

         INTRODUCTION

         Before the court for decision is the Motion for Summary Judgment filed by the Defendants (hereinafter, McKee). This case is a legal malpractice claim against Attorney McKee and his former law firm, McKee Billings, arising out of Attorney McKee's representation of the Estate of Jacqueline Childs, through Linus Nicholas, as Personal Representative of the Estate, in a mortgage foreclosure action brought by JPMorgan Chase Bank in 2012.

         The complaint in this action was filed on October 17, 2017 and will not be mistaken for "a short and plain statement of the claim" as contemplated by M.R.Civ.P. 8(a)(1). The complaint alleges that Attorney McKee was professionally negligent in his handling of the defense for the Estate in the foreclosure action. The complaint purports to be brought by Mr. Nicholas in his individual capacity, and as the Personal Representative of the Estate and as the assignee of the rights of the Estate. The complaint asserts causes of action for: Professional Negligence (Count I); Breach of Fiduciary Duties (Count II), and; Negligent Infliction of Emotional Distress (Count III).

         On November 13, 2018, McKee moved for summary judgment on all claims brought by Nicholas and the Estate. The summary judgment record in this proceeding is an example of how burdensome and unhelpful it is to the court and the litigants, when there is non-compliance with the requirements of M.R.Civ.P. 56, In the court's view, the Statement of Additional Facts submitted by counsel for the Plaintiffs does not meet the rule requirement that it be "a separate, short, and concise opposing statement." M.R.Civ.P. 56(h)(2). Rather, in large part it appears to the court to be highly argumentative. Oral argument on the motion for summary judgment was held on April 25, 2019.

         FACTUAL BACKGROUND

         There does not appear to be a genuine issue of material fact about the following.

         Linus Nicholas and Jacqueline Childs lived together in a home located at 56 Neal Street in Gardiner. Ms. Childs purchased the home around 2001. Mr. Nicholas and Ms. Childs were never married. His name was not on the mortgage loan or the deed to the property at 56 Neal Street.

         Ms. Childs died on March 18, 2011 and left no will. Mr. Nicholas was appointed Personal Representative of the Estate. JPMorgan Chase Bank, N.A., filed a complaint for foreclosure on August 4, 2011 because of the failure to make the monthly payments on the mortgage loan. On March 6, 2012, Nicholas engaged Attorney McKee to defend the foreclosure action. The Hourly Fee Agreement and Engagement Letter (Exhibit F), described the scope of the legal services provided as being "limited to only the following: Pending Lawsuit Against Linus Nicholas, Personal Representative of the Estate of Jacquelyn Childs, Kennebec County Superior Court, Docket No. AUGSC - RE-11-103. Any additional legal services shall be upon specific further agreement."

         The bench trial in the foreclosure action was held on August 16, 2012, and on August 23, 2012, the court (Murphy, J.) entered judgment of foreclosure in favor of the bank. (Exhibit G). The judgment was affirmed by the Law Court in a Memorandum of Decision. See JPMorgan Chase Bank, NA. v. Estate of Jacqueline M.Childs, MEM-13411.

         Nicholas now alleges that Attorney McKee was representing him personally, and gave him bad advice to invest money in improvements to the property at 56 Neal, Street, even while the property was the subject of a pending foreclosure action. He further asserts that McKee was negligent in how he handled the foreclosure action. In particular, he faults McKee for not raising a defense based on the Bank's alleged non-compliance with 14 M.R.S. §6111. Moreover, he contends that McKee was negligent by failing to plead the defense of "accord and satisfaction" and the doctrine of "unclean hands." He also contends that McKee made several errors at trial and failed to have the foreclosure action handled as part of the foreclosure mediation program.

         Nicholas claims that he has suffered substantial damages as a result of McKee's alleged malpractice, but there is no corroborating documentary evidence of the claimed damages.

         DISCUSSION

         "In legal malpractice cases, the plaintiff must show (1) a breach by the defendant attorney of the duty owed to the plaintiff to conform to a certain standard of conduct; and (2) that the breach of the duty proximately caused an injury or loss to the plaintiff." Niehoff v. Shankman & Assocs, Legal Ctr., PA.,2000 ME 214, S 7, 763 A.2d 121. An attorney owes a duty to a client to use reasonable skill, prudence and diligence according to the standard of an ordinarily competent lawyer performing similar services under like circumstances. Pawlendzio v. Haddow, 2016 ME 144, ¶ 11, 148 A.3d 113. A plaintiff in a legal malpractice case must show that his claimed loss or damage ...


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