Opinion
BUSINESS AND CONSUMER COURT BCD-CV-20-07
08-10-2020
KELSEY HERRICK, et al., Plaintiffs v. MELISSA MONTEJANO, et al. Defendants
STATE OF MAINE
CUMBERLAND, ss
COMBINED ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Before the Court are Defendant Attorney Jessica Demers's and Defendant Bourque & Clegg LLC's motions for summary judgment. For the following reasons, the Court grants both motions.
BACKGROUND
This is a professional negligence case arising out of Defendants Jessica Demers's and Bourque and Clegg's representation of plaintiff Herrick during Herrick's divorce from her husband Jody Brooks. In addition to Herrick, the Complaint also names as Plaintiffs the children of Herricks and Brooks (the "Minor Plaintiffs"). The following facts are not in dispute.
In 2011, Herrick decided to divorce her husband, Jody Brooks, and retained Bourque and Clegg to represent her in the divorce. (Demers S.M.F. ¶¶ 2, 4-5; B&C S.M.F. ¶ 6.) Demers was at that time an attorney employed at Bourque and Clegg and was the only attorney who assisted Demers during the divorce. (Demers S.M.F. ¶¶ 2 4-5; B&C S.M.F. ¶ 7.) The fee agreement between by Bourque & Clegg and Herrick names Herrick as the only client. (Demers S.M.F. ¶ 6; B&C S.M.F. ¶ 9.) The Springvale District Court entered a divorce judgment on June 7, 2012. (Demers S.M.F. ¶ 13; B&C S.M.F. ¶ 15.) Paragraph 17 of the judgment provided that:
Defendant [Jody Brooks] shall maintain his life insurance policy in the amount of $300,000 with a reputable insurance company, naming Plaintiff as beneficiary thereof, until child support and spousal support obligations established hereunder cease, and shall provide periodic proof, upon request by Plaintiff, that said policy is in full force and effect.(Demers S.M.F. ¶ 16; B&C S.M.F. ¶ 17.) At the time of the judgment, Brooks worked at the Portsmouth Naval Shipyard and had a Federal Employees Group Life Insurance ("FEGLI") policy. (Demers S.M.F. ¶ 3; B&C S.M.F. ¶ 4.) The last time that Herrick and Demers discussed Jody Brooks's life insurance was on June 6, 2012, the day of the divorce trial. (Demers S.M.F. ¶ 22; B&C S.M.F. ¶ 22.) Demers told Herrick that Herrick would need to call Brooks's employer to make sure that Brooks named Herrick as the beneficiary of Brooks's life insurance policy. (Demers S.M.F. ¶ 23; B&C S.M.F. ¶ 20.)
Pursuant to the judgment, Brooks's Attorney was required to prepare and present the Court with two Qualified Domestic Relations Orders ("QDROs") in order to effectuate the Court's award of 50% of Brooks's Thrift Savings Plan ("TSP") and 50% of Brooks's Federal Employee Retirement System Account ("FERS Account") to Herrick. (Demers S.M.F. ¶¶ 14-15.) Brooks's attorney failed to do this. (Demers S.M.F. ¶ 31.) Instead, Demers prepared the QDROs and mailed them to the Court on August 8, 2012. (Demers S.M.F. ¶ 32.) On September 6, 2012, Demers mailed certified copies of the QDROs to the Office of Personnel Management ("OPM") and the TSP Legal Processing Unit. (Demers S.M.F. ¶ 34.)
On October 31, 2012, Demers ended her employment at Bourque & Clegg and started her own law firm. (Demers S.M.F. ¶ 35; B&C S.M.F. ¶ 33.) In March 2013, Bourque & Clegg, on behalf of Herrick, filed a contempt action against Jody Brooks to recover unpaid legal fees that the Divorce Judgment obligated him to pay to Bourque & Clegg. (B&C S.M.F. ¶ 27.) Bourque and Clegg continued to represent Herrick in proceedings related to the collection of these legal fees until February 7, 2014. (Pl.'s Opp. to B&C S.M.F. ¶ 62; B&C Reply S.M.F. ¶ 62.) On July 5, 2013, OPM mailed a letter to Bourque and Clegg regarding Brooks's FERS Account and which requested a certified copy of the Divorce Judgment. (Demers S.M.F. ¶ 38.) Bourque and Clegg forwarded the letter to Demers. (Demers S.M.F. ¶ 39.) In August 2013, Demers mailed a certified copy of the Judgment as well as another copy of the QDRO to OPM. (Demers S.M.F. ¶¶ 39, 41.)
In early 2019 Brooks died in an automobile accident after having married Melissa Montejano. (Demers S.M.F. ¶ 43; B&C S.M.F. ¶ 34.) Brooks was covered by the same FEGLI policy at the time of his death. (Pl.'s Add'l S.M.F. ¶ 56.) Brooks, however, had not designated a beneficiary for his FEGLI policy. (Demers S.M.F. ¶ 53.) On January 20, 2019, Herrick inquired about obtaining Brooks's FEGLI benefits and Herrick received an application. (Demers S.M.F. ¶ 44.) On March 4, 2019, Herrick learned that her application had been denied and that the FEGLI benefits were being paid to Defendant Montejano. (Demers S.M.F. ¶ 45.) The stated reason for the denial was that the divorce Judgment had not been received by the FEGLI office prior to Brooks's death and that the Judgment did not expressly reference Brooks's FEGLI policy. (Demers S.M.F. ¶¶ 45-50; B&C S.M.F. ¶ 36-37.)
Melissa Montejano is also named as a defendant in Plaintiffs' complaint.
Plaintiffs filed the complaint in this matter on July 31, 2019. (Compl. at 12.) The Complaint was received by the court on August 2, 2019. (Compl. at 1.)
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, 44 (Me. 1995). "[S]ummary judgment is appropriate when the portions of the record referenced in the statements of material fact disclose no genuine issues of material fact and reveal that one party is entitled to judgment as a matter of law." Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 11, 915 A.2d 400.
DISCUSSION
Both Demers and Bourque and Clegg argue that summary judgment should be granted in their favor because Plaintiff Herrick's claims are barred by the statute of limitations and because they did not owe the Minor Plaintiffs a duty of care. Plaintiffs oppose the motion on two grounds. First, Plaintiffs argue that a genuine issue of material fact exists with regard to whether the defendants breached the applicable duty of care within the limitations period. Second, Plaintiffs argue that, because the Minor Plaintiffs are the intended third-party beneficiaries of Brooks life insurance benefits, the Defendants owed them a duty of care. The Court does not find either of Plaintiffs' arguments persuasive.
I. Statute of Limitations
"[A] civil action against an attorney for professional negligence, malpractice, or breach of contract for legal services "shall be commenced within 6 years after the cause of action accrues." Packgen, Inc. v. Bernstein, 2019 ME 90, ¶ 1, 209 A.3d 116 (quoting 14 M.R.S. § 752). The limitations period begins to run "from the date of the act or omission giving rise to the injury, not from the discovery of the malpractice, negligence or breach of contract . . . ." Id.; 14 M.R.S. § 753-B.
The undisputed facts of this case show that the only legal services the Defendants provided to Herrick within the period of limitations was to mail a QDRO and certified copy of the judgment to OPM and to represent Herrick in proceedings related to a motion for contempt. Plaintiffs' legal malpractice claims, however, are not based on any alleged negligence in connection with either of these acts. Instead, Plaintiffs claims are based on alleged omissions or negligent failures to act by the defendants which resulted in Herricks's failure to obtain Brooks's FEGLI benefits. Specifically, Plaintiffs claim that Defendants' breached their duty by: (1) failing to file a copy of the judgment with the FEGLI office; (2) failing to inquire with Brooks's divorce attorney if either he or Brooks had filed a copy of the Judgment with the FEGLI office; and (3) failing to inquire with the FEGLI office if the judgment had been filed.
Plaintiffs argue that because the Defendants' negligent conduct was an omission, there is therefore no certain date on which the Plaintiffs' cause of action accrued. Plaintiffs aver that the date is a question of fact for the jury to decide and that a genuine issue of material fact therefore exists. Because the Complaint was filed on July 31, 2019, however, the Plaintiffs may only pursue relief for a cause of action which accrued on or after July 31, 2013. 14 M.R.S §§ 752, 753-B. In order to defeat Defendants' motions for summary judgment, Plaintiffs must therefore generate a prima facie case that a negligent omission occurred within the limitations period. Pawlendzio v. Haddow, 2016 ME 144, ¶ 14, 148 A.3d 713 ("to defeat a defendant's motion for summary judgment, a plaintiff must present evidence sufficient to generate a prima facie case of a legally cognizable claim"). In other words, the Plaintiffs must present evidence that (1) the Defendants failed to act; (2) the Defendants' failure to act breached the standard of care owed to the Plaintiffs; and (3) the Defendants' failure to act occurred within the six years preceding the filing of the complaint in this matter.
There is no genuine dispute that the defendants failed to file a certified copy of the Divorce Judgment with the FEGLI office or investigate whether Jody Brooks had named Herrick as the beneficiary of his FEGLI policy. This failure, however, is not so obviously a breach of duty that a breach may be determined as matter of law or is within the ordinary knowledge of laymen. Id. ¶ 12 (citing Kurtz & Perry, P.A. v. Emerson, 2010 ME 107 ¶ 26, 8 A.2d 677). Expert testimony is therefore required to establish that these failures constitute a breach of the Defendants' duty. Id. Plaintiffs are unable to defeat Defendants' motions for summary judgment simply by alleging that the Defendants breached their duty. See id. ¶ 14.
For instance, paragraph 17 of the Divorce Judgment required Jody Brooks to maintain a $300,000 life insurance policy with a "reputable insurance company." The Divorce Judgment does not mention Brooks's FEGLI policy. Additionally, the parties agree that Brooks did not name Herrick—or any other person—as the beneficiary of his policy. There is thus no dispute that Brooks's failure to name Herrick as the beneficiary caused Herrick's injury.
In support of their statements of material fact, Plaintiffs have filed depositions of the Defendants and Plaintiff Herrick as well as correspondence between Herrick's attorney and the FEGLI Office. None of Plaintiffs' statements of material fact reference any expert testimony which would establish that the standard of care required either Demers or Bourque & Clegg to inquire into whether the FEGLI Office had received a copy of the divorce judgment or whether Jody Brooks had named Herrick as the beneficiary of his FEGLI policy. Similarly, there is no expert testimony which would establish that the Defendants were required to perform either of these acts after July 31, 2013, the date six years prior to the filing date of the complaint in this case. Given the absence of expert testimony, Plaintiffs are unable to generate a prima facie case that the Defendants committed a breach of duty within the limitations period. See id. ¶¶ 12, 14. Accordingly, there is no genuine issue of material fact in regard to whether the Defendants are liable to Plaintiff Herrick for professional negligence and the Defendants are entitled to a judgment as a matter of law on Plaintiff Herrick's claims. Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 11, 915 A.2d 400.
II. No Duty Was Owed to the Minor Plaintiffs
14 M.R.S. § 853 provides "[i]f a person entitled to bring any of the actions under sections 752 to 754 . . . is a minor . . . when the cause of action accrues, the action may be brought within the times limited herein after the disability is removed." In light of this provision, Defendants cannot argue that the claims of the Minor Plaintiffs are time barred. Defendants do however, argue that summary judgment should be granted because neither Defendant owed the Minor Plaintiffs a duty of care. Plaintiffs do not dispute that the Minor Plaintiffs were not clients of either Defendant. (Pl.'s Opp. to Demers S.M.F. ¶ 9; Pl.'s Opp. to B&C S.M.F. ¶¶ 9-10.) Instead, Plaintiffs argue that the Minor Plaintiffs are owed a duty of care as intended beneficiaries of the Defendants' legal assistance. (Pl.'s Opp. S.M.F. ¶ 9.) Specifically, the Plaintiffs claim that they were the intended beneficiaries of financial benefits such as child support payments and life insurance payments. (Pl.'s Opp. S.M.F. ¶ 9.)
As a general rule, "an attorney owes a duty of care to only his or her client." Estate of Cabatit v. Canders, 2014 ME 133, ¶ 21, 105 A.3d 439. Only "in limited and rare situations, when an attorney's actions are intended to benefit a third party and where policy considerations support it" will an attorney owe a duty of care to "a limited class of nonclients." Id. "An attorney will never owe a duty of care to a nonclient, however, if that duty would conflict with the attorney's obligations to his or her clients." Id. "The existence of a duty of care is a question of law . . . ." Reid v. Town of Mt. Vernon, 2007 ME 125, ¶ 14, 932 A.2d 539.
In this case, there is no genuine dispute in regard to who was the intended beneficiary of Brooks's FEGLI policy. Both the Plaintiffs and the Defendants agree that, pursuant to the Divorce Judgment, Brooks was required to name Plaintiff Herrick—not the Minor Plaintiffs—as the beneficiary of his policy. Moreover, there are multiple and competing interests involved in a divorce proceeding; interests which include the custodial, emotional and financial support of children. Miller v. Miller, 677 A.2d 64, 68 (Me. 1996). Any recognition that an attorney representing a party to a divorce also owed a duty of care to that party's minor children could create multiple conflicts of interest, and also could impose an undue burden on the legal profession. Estate of Cabatit, 2014 ME 133, ¶¶ 18, 21. Given the undisputed facts in the summary judgment record, the Court is able to determine as a matter of law that neither Demers nor Bourque and Clegg could have owed the Minor Plaintiffs a duty of care as nonclients. Id.; Reid, 2007 ME 125, ¶ 14, 932 A.2d 539.
Plaintiffs, in fact, concede the Brooks wanted to name the Minor Plaintiffs as the beneficiaries of his policy. (B&C S.M.F. ¶ 19; Pl's Opp. B&C S.M.F. ¶ 19.)
CONCLUSION
There is no genuine issue of material fact with respect to whether the Attorney Defendants committed professional negligence within the six years preceding the filing of the complaint in this matter. The Court also concludes that, as a matter of law, the Attorney Defendants did not owe the Minor Plaintiffs a duty of care.
The entry is
Defendant Jessica Demers's Motion for Summary Judgment is GRANTED.
Defendant Bourque and Clegg's Motion for Summary Judgment is GRANTED.
The clerk is directed to incorporate this order into the docket by reference. M.R. Civ. P. 79(a). Date: August 10 , 2020
/s _________
M. Michaela Murphy
Justice, Superior Court BCD-CV-2020-07 KELSEY HERRICK, INDIVIDUALLY, and obo minor children v. MELISSA MONTEJANO, JESSICA DEMERS, ESQ. and BORQUE & CLEGG, LLC
| Party Name: | Attorney Name: |
|---|---|
| Kelsey Herrick, et al. | Christopher Wright, Esq.Siegel & Crockett, PC63 Main StreetBethel, ME 04217 |
| Melissa Montejano | Gregory McCullough, Esq.McCoullough Law Offices1074 PO Box 910Sanford, ME 04073 |
| Jessica Demers, Esq. | James Bowie, Esq.Thompson, Bowie & Hatch415 Congress StreetPortland, ME 04112 |
| Bourque & Clegg | George Dilworth, Esq.Drummond Woodsum84 Marginal Way, Suite 600Portland, ME 04101 |
CUMBERLAND, ss. BUSINESS & CONSUMER COURT DOCKET NO. BCD-CV-20-07 KELSEY HERRICK, individually and on behalf of her minor children AB and CB, PLAINTIFF, v. MELISSA MONTEJANO, JESSICA DEMERS, ESQ. & BOURQUE & CLEGG, LLC, DEFENDANTS.
ORDER ON MOTION FOR LEAVE TO AMEND COMPLAINT
Before the Court is Plaintiff Kelsey Herrick's motion for leave to amend the complaint. Specifically, Plaintiffs seek to amend Count II (legal malpractice) of their complaint with information acquired during discovery that, in Plaintiffs' view, clarifies the timeline of Defendant Bourque & Clegg's representation, and bolsters Count II of their Complaint. Defendants object to this request, arguing the motion should be denied because: 1) the requested amendment would be futile, 2) the new claims asserted in the requested amendment are time barred because they are distinct from, and thus do not relate back to, the claims asserted in Plaintiff's initial complaint, 3) allowing the proposed amended complaint at this time would unfairly prejudice the defendants, and 4) the proposed amendment is not predicated on anything "new" and is thus not properly subject of an amended complaint.
Plaintiffs Kelsey Herrick and her two minor children are represented by Attorney Christopher A. Wright. Defendants are represented by Attorneys George T. Dilworth, and Jeffrey T. Piampiano. The Court has reviewed Plaintiff's motion and Defendant's opposition, and for reasons stated, grants Plaintiff's motion to amend the complaint.
Plaintiffs bring this motion to amend the complaint according to M. R. Civ. P. 15(a), which states:
a party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of the court or by written consent of the adverse party; and leave shall be given when justice so requires.
The Maine Rule tracks the language of the related federal rule, which courts and commentators have stressed ought to be liberally applied to achieve the most expeditious resolution of litigation on the merits. Bangor Motor Co. v. Chapman, 452 A.2d 389, 392 (Me. 1982). It follows that leave to amend a complaint will be given freely, and the Law Court has construed this mandate to mean that "if a moving party is not acting in bad faith or for delay, the motion will be granted in the absence of undue prejudice". Chrysler Credit Corp. v. Bert Cote's L/A Auto Sales, Inc., 1998 ME 53, ¶ 14, 707 A.2d 1311, 1315 (quoting Diversified Foods, Inc. v. First Nat'l Bank of Boston, 605 A.2d 609, 616 (Me. 1992). A motion to amend a pleading pursuant to Rule 15 is committed to the sound discretion of the trial court. Bangor Motor Co., 452 A.2d 389, 392.
Defendants' first argument in opposition to the motion is that amendment of the complaint would be futile, and would fail to survive a motion to dismiss. Defendants make various assertions in support of this argument, the first being that Plaintiff testified that she understood (or should have understood) that her initial engagement agreement with Defendants was limited to obtaining a divorce judgment on her behalf, and that she did not explicitly request attorneys at Bourque & Clegg to monitor life insurance-related obligations. Additionally, Defendants assert that Plaintiff's deposition testimony confirms her understanding that her engagement with the firm would end upon the completion of her divorce, and that any additional work undertaken by the firm would be separate from the divorce itself. Finally, Defendants argue that because Plaintiffs initially claimed the sole predicate for claims against the firm were based on its alleged failure to supervise Attorney Demers on a respondeat superior theory, the proposed amendments to Count II of Plaintiff's complaint fail to relate back to the same transaction or occurrence.
Despite Defendants' various contentions, and federal precedent imposing a heightened standard to amend pleadings, the Law Court has previously held that a finding that an action presents no case or controversy alone is not sufficient to deny a motion to amend. Bangor Motor Co., 452 A.2d 389, 393. However, even were this Court to adopt a heightened standard that required the Amended Complaint to survive a motion to dismiss, the Court finds that the Amended Complaint would likely do so.
Federal precedent has held that a requested amendment should be denied as futile where, if granted, it would be subject to dismissal on either a motion to dismiss or a motion for summary judgment. See, e.g., Bethany Pharacal Co., Inc. v. QVC, Inc., 241 F.3d 854, 860-61 (7th Cir. 2001); Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2" Cir. 2003). --------
To survive a 12(b)(6) motion to dismiss for failure to state a claim, the Court must view the complaint in the light most favorable to the plaintiff to determine whether it sets forth facts that would entitle the plaintiff to relief under some legal theory. M. R. Civ. P. 12(b)(6). Maine law requires a plaintiff to satisfy the following elements to state a claim for legal malpractice: 1) the breach of a duty by defendant to conform to a certain standard of conduct, and 2) the plaintiff's damages were proximately caused by the defendant's breach. Brewer v. Hagemann 2001 ME 27, 771 A.2d 1030, 1032. Taken as true, the allegations set forth in the Amended Complaint meet all of the requirements of a legal malpractice claim. The Amended Complaint alleges that the Defendant owed Plaintiffs a duty to supervise the actions of its employees to ensure that competent legal service was being provided. Amended Complaint at ¶ 65. Count II of the Amended Complaint also asserts that attorneys employed by the firm breached their duties to provide competent legal counsel to the Plaintiffs. Amended Complaint ¶¶ 61-64, and that the Defendants failed to effectively oversee the actions of its employees. Amended Complaint ¶¶ 66-67. Plaintiffs assert that they did not receive FEGLI policy benefits as ordered by the Plaintiff's divorce judgment, due to Defendants failure. Amended Complaint at ¶¶ 67-68. Because the facts of the Amended Complaint state a claim for legal malpractice, it cannot be considered futile.
Defendants' second argument supporting their opposition is that the new claims asserted in the Amended Complaint are time barred because they are distinct from, and thus do not relate back to, the claims asserted in Plaintiff's initial complaint. "An amendment of a pleading relates back to the date of the original pleading when. . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." M.R. Civ. P. 15(c)(2). In Plaintiffs' view the transaction or occurrence subject to the Count II of their complaint is the firm's representation of Plaintiff Herrick in her divorce proceeding, and the firm's continued representation of her when she sought to enforce the judgment. The conduct asserted in Plaintiffs' initial complaint as the basis for Count II is that Defendants failed to properly supervise the actions of its employed attorneys in the firm's representation. Count II of the Amended Complaint alleges the same, though with more details about said representation. For this reason, the Court finds that the Amended Complaint relates back to the same transaction or occurrence subject to the original complaint.
Third, Defendants assert that allowing the proposed amendment would result in unfair prejudice. Specifically, Defendants argue that the Amended Complaint relies on an entirely new theory, at odds with Plaintiffs' prior deposition testimony. However, despite adding facts to bolster Count II of their complaint, Plaintiffs have not asserted an entirely new theory. Instead, as previously stated, the claims against the Defendant in the original Complaint are very similar if not the same in the Amended Complaint.
Finally, Defendants claim that the Amended Complaint does not withstand scrutiny, as it is not predicated on new information. However, in their papers Plaintiffs have pointed to a variety of facts not available to them prior to deposing Defendants. The Court also notes that Plaintiffs promptly filed their Motion to Amend the day after receiving an electronic copy of the deposition testimony. The Court therefore concludes that in filing their Amended Complaint, Plaintiffs are not acting in bad faith, causing undue delay, or subjecting Defendants to unfair prejudice. Accordingly, the Court grants Plaintiffs' motion for leave to file the Amended Complaint.
The Clerk is requested to enter this Order on the docket for this case by incorporating it by reference. M.R. Civ. P. 79(a). Dated: July 10 , 2020
/S _________
Justice M. Michaela Murphy
Business and Consumer Court BCD-CV-2020-07 KELSEY HERRICK, INDIVIDUALLY, and obo minor children v. MELISSA MONTEJANO, JESSICA DEMERS, ESQ. and BORQUE & CLEGG, LLC
Party Name: Attorney Name: Kelsey Herrick, et al. Christopher Wright, Esq. Siegel & Crockett, PC 63 Main Street Bethel, ME 04217 Melissa Montejano Gregory McCullough, Esq. McCoullough Law Offices 1074 PO Box 910 Sanford, ME 04073 Jessica Demers, Esq. James Bowie, Esq. Thompson, Bowie & Hatch 415 Congress Street Portland, ME 04112 Bourque & Clegg George Dilworth, Esq. Drummond Woodsum 84 Marginal Way, Suite 600 Portland, ME 04101