Opinion
Civil Action CV-23-131
08-15-2023
ADAM WILSON, Plaintiff, v. JANET KANTZ, ESQ., et al., Defendant,
Plaintiff-Adam Wilson, Esq. Defendant- Matthew Wahrer, Esq.
Plaintiff-Adam Wilson, Esq.
Defendant- Matthew Wahrer, Esq.
ORDER ON MOTION TO DISMISS
Deborah P. Cashman, Justice
Before the Court is Defendant's Motion to Dismiss Plaintiff s Complaint, which states four counts for legal malpractice against all defendants. Defendants move to dismiss, arguing most of Plaintiff's claims are time-barred and the timely allegations fail to state a claim upon which relief can be granted, M.R. Civ. P. 12(b)(6). For the following reasons, the motion is granted.
Background
Plaintiffs Complaint alleges the following facts:
Plaintiff retained Defendant Attorney Kantz and her firm Defendant Vincent, Kantz, Pittman &Thompson on March 8, 2016 to represent him in his divorce after notifying Defendants that the opposing party in his divorce proceeding, PORDC-FM-2015-00402, had met with several attorneys, creating potential conflicts of interest. Pl.'s Compl. ¶¶ 4-7, 9, 11-17. Defendants represented to Plaintiff that there was no conflict. ¶ 18. On March 21, 2017, Defendants disclosed that Defendant Attorney Pittman had met with the opposing party for an initial consult and should not be involved in the case aside from drafting, although the firm could still represent Plaintiff. ¶¶ 19, 22. Defendants were soon after unprepared for a motion filing, the draft of which motion was
unusable and would be unsuccessful. ¶ 23.
Between February 28 and March 22, 2017, Defendants were overbooked and did not have sufficient time to work on Plaintiffs case. ¶ 39. This workload led to unfavorable financial errors that Plaintiff eventually noticed. ¶ 40. Attorney Kantz did not correct opposing counsel's false statements about Plaintiffs mental illness in relation to his parental rights. ¶ 41. There were roughly two dozen emails, at least some to the guardian ad litem for the case, between March 2016 and April 2017 that went unrebutted. Id. On March 23, 2017, Defendant Kantz filed a motion to withdraw as Plaintiffs counsel in the District Court proceeding, ¶ 25. The motion's premise that there was a fundamental disagreement between attorney and client creating unreasonable difficulty was false and created bias due to Plaintiffs mental illness. ¶¶ 30-32. At the time of the motion filing, there was an important hearing scheduled for March 28, 2017. ¶ 26. Plaintiff and Defendants disagreed whether to file a M.R. Civ. P. 60 motion for reconsideration. See ¶¶ 27, 31.
Plaintiffs Complaint states that this motion was only filed in the District Court although there was a bifurcated Referee proceeding in which Defendant Kantz was representing Plaintiff. Defendants attach a copy of the motion as Defs.' Ex. A and claim that the motion was in fact filed in the District Court but referred to both proceedings.
Defendants were not prepared for the March 28 hearing, and they withheld or delayed disclosure of material facts Plaintiff needed to make informed decisions about the Rule 60 motion, changes to a proposed interim order, and parental rights and marital property. ¶¶ 43-44. Defendants concealed then inability to meet the Rule 60 motion deadline, which was within a small number of business hours of March 23, 2017 at 3:30 pm, when Defendant Kantz told Plaintiff that the firm most likely did not have a back-up attorney to file the Rule 60 motion. ¶¶ 46-47. Attorney Kantz was granted leave to withdraw from the District Court proceeding on March 24, but she was required to appear- at the March 28 hearing and to remain counsel for the Referral proceedings. ¶ 60. The Referee on March 28 or 29, 2017, gave Plaintiff the statutory 21 days to object, until April 14, 2017. ¶ 51.
The Order was not issued until March 27, 2017.
On March 31, 2017, Defendants emailed an invoice with several irregularities to Plaintiff, including an item for intra-firm discussion of the conflict of interest and an item for contract drafting that did not occur but instead the item represented work by the conflicted Attorney Pittman. ¶¶ 34-37.
Kantz stopped forwarding opposing counsel's motions and communications to Plaintiff after the District Court's order. ¶ 58. Kantz did email Plaintiff on March 29, 2017 sharing legal advice. ¶ 59. On March 31, Plaintiff requested opposing counsel agree to an extension of an April 4 deadline for Plaintiffs edits to the Partial Divorce Judgment, and opposing counsel refused. ¶¶ 67, 70. On April 3, 2017, Kantz wrote to opposing counsel, the guardian ad litem, and the Referee asking that all future correspondence on the case be directed to another attorney. ¶ 71. This withdrawal caused injuries including "an incurable false prejudice to Plaintiff' and "an uncurable false benefit" to the opposing party due to the statements in the motion to withdraw, deprivation of "a statutory right and a judicial order to file in court a formal written opposition," violation of duties of loyalty, care, honesty, and not to engage in conflicts of interest. ¶ 73.
Plaintiff claims that this attorney had not yet entered her appearance on Plaintiff's behalf at the time of Attorney Kantz's email, but Defendants' exhibits indicate that Attorney Chadbourne entered an appearance on the same day, discharging Attorney Kantz's duty to represent Plaintiff under the District Court's order. Exs. C, E, J. See Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶¶ 10-11, 843 A.2d 43.
In their opposition, Defendants present several documents that they claim are "central to Plaintiffs Complaint," a claim which Plaintiff does not dispute. These include Defendants' Exhibits A-K.
Legal Standard
"A motion to dismiss tests the legal sufficiency of the complaint." Packgen, Inc. v. Bernstein, Shur, Sawyer & Nelson, P.A., 2019 ME 90, ¶ 16, 209 A.3d 116 (quoting In re Wage Payment Litig., 2000 ME 162, ¶ 3, 759 A.2d 217). In considering a motion to dismiss, the material allegations of the complaint are accepted as true. Id. (citing Moody, 2004 ME 20, ¶ 7, 843 A.2d 43; Ramsey v. Baxter Title Co., 2012 ME 113, ¶ 2, 54 A.3d 710). In addition to the allegations in a complaint, courts may consider documents referred to in or central to Plaintiffs Complaint when the authenticity of those documents is not challenged. Andrews v. Sheepscot Island Co.,2016 ME 68, ¶ 8, 138 A.3d 1197; Moody, 2004 ME 20, ¶ 11, 843 A.2d 43. "A dismissal should only occur when it appears 'beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim.'" McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994) (quoting Hall v. Bd. of Env't Prot., 498 A.2d 260, 266 (Me. 1985)). Statute of limitations is an affirmative defense; a defendant asserting claims are time-barred bears the burden of proof. M.R. Civ. P. 8(c).
Discussion
Defendants first argue that to the extent the malpractice claims are based on their alleged acts and/or omissions that occurred before March 31, 2017, they are time-barred. Plaintiff responds that the Complaint should not be dismissed on that basis because some of the allegations are timely.
"All civil actions shall be commenced within 6 years after the cause of action accrues and not after wards...." 14 M.R.S. § 752. "In actions alleging professional negligence, malpractice or breach of contract for legal service by a licensed attorney, the statute of limitations starts to run from the date of the act or omission giving rise to the injury...." 14 M.R.S. § 753-B. The Law Court has declined to adopt either the continuing negligence or continuing representation doctrine in the context of legal malpractice claims. Packgen, 2019 ME 90, ¶ 2, 209 A.3d 116. Whether the statute of limitations bars a claim is a question of law. Id. ¶ 17. "Where it is 'reasonably probable that one act or omission in a series of acts or omissions was the sole proximate cause of the injury complained of, a cause of action would accrue from the date of that act or omission, and not from the dates of any subsequent acts or omissions.'" Id. ¶ 33 (citing Baker v. Farrand, 2011 ME 91, ¶ 24, 26 A.3d 806).
Plaintiff does not dispute that some allegations are time-barred. The Court concludes that to the extent the claims are based on allegations occurring before March 31, 2017, they are time-barred. The parties focus their arguments on those acts and omissions occurring on or after March 31, 2017. As to the timely allegations, Defendants argue that the acts and omissions do not support a plausible claim for relief, in part because the exhibits they have provided show Plaintiff s allegations are false, and in part because Plaintiff has not showed causation. Plaintiff responds that the claims are sufficiently pled and that Defendants did not adequately argue the Complaint failed to allege proximate cause. Specifically, Plaintiff alleges that Complaint ¶¶ 76-8 satisfy the requirement to plead that a less favorable result occurred due to tire breach.
Defendants group these acts and omissions into those occurring on March 31, 2017 and those on April 3, 2017.
The Court declines to find that Defendants waived this argument by not adequately mentioning it at the outset of their Motion.
To prove attorney malpractice, a plaintiff must show (1) a breach by the defendant of tire duty owed to the plaintiff to conform to a certain standard of conduct; and (2) that the breach of that duty proximately caused an injury or loss to the plaintiff.Repucci v. Nadeau, 2020 ME 114, ¶¶ 7, 11, 238 A.3d 994 (quoting Brooks v. Lemieux, 2017 ME 55, ¶ 9,157 A.3d 798). Unless counsel's breach of duty is obvious enough to be within the ordinary knowledge of laymen, expert testimony is required to establish the breach. Pawlendzio v. Haddon, 2016 ME 144, ¶¶ 10-12, 148 A.3d 713 (quoting Sohn v. Bernstein, 279 A.2d 529, 532 (Me.1971)). "In order to satisfy the proximate cause prong of that test, 'a plaintiff must demonstrate that he or she would have achieved a more favorable result but for the defendant's alleged legal malpractice,"' Repucci v. Nadeau, 2020 ME 114, ¶ 7, 238 A.3d 994 (first quoting Niehoff v. Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, ¶ 10, 763 A,2d 121; then citing Garland v. Roy, 2009 ME 86, ¶ 20, 976 A,2d 940).
First, the exhibits Defendants have attached do not render the allegations in the Complaint insufficient in light of the motion to dismiss standard. Defendant's exhibits clarify the full context of communications but do not show that all of Plaintiff s allegations are necessarily baseless. For example, Defendants have shown that Attorney Kantz did not withdraw without permission from the Court and Referee, see Defs.' Exs, C &J, but Plaintiff also argues that her withdrawal on an insincere basis and at a poor time caused prejudice and economic damage. Although Defendants provide a conflict of interest waiver, Defs.' Ex. K, signed by Plaintiff on March 31,2016, Plaintiff argues that his claim based on conflict of interest stems not from Attorney Kantz's consultation with the opposing party but from her motion on March 23, 2017 and withdrawal on April 3, 2017, which supported the opposing party's arguments that Plaintiff was mentally unstable.
Focusing on the events occurring on or after March 31, 2017, Defendants argue that Plaintiff has not alleged sufficient facts to support either prong of the legal malpractice test. Plaintiff has alleged specific occurrences that he argues constituted breaches of duty. Of those alleged breaches, some are based on omissions-the failure to correct certain false statements. The Law Court has held that legal malpractice claims accrue at the time of the act or omission giving rise to the injury. Packgen, 2019 ME 90, ¶¶ 23, 31, 209 A.3d 116. In this case, that accrual would be at the time the false statements are made, not on each day that the Defendants did not correct the statements. See id. According to the Complaint, the false statements Defendants allegedly did not correct were all made before March 31, 2017.
Plaintiffs only remaining allegations are the billing descriptions as evidence of a conflict of interest and that Attorney Kantz withdrew at an inopportune time. The billing descriptions function only as evidence that Defendants were engaged in a conflict of interest and conspiring to cover evidence of that conflict, Plaintiff alleges that Attorney Kantz's withdrawal at a crucial time in the case caused him prejudice. The Court cannot conclude that it is impossible that either of these incidents could be construed as a breach of duty to Plaintiff; however, Plaintiff has not adequately alleged that either caused him harm.
Plaintiff alleges that Attorney Kantz's withdrawal was based on false statements, but those statements were made prior to March 31, 2017.
Plaintiff's Complaint and briefing state that the billing irregularities do not constitute a claim in themselves but function as "predicate acts" regarding the conflict of interest claim. Pl.'s Opp. to Mot. Dismiss at 4.
The Complaint fails to connect the conflict of interest as represented by the billing descriptions or the timing of the withdrawal to the adverse outcomes. It alleges that the breaches "continue to cause Plaintiff adverse prejudice and specific quantifiable economic losses in the ongoing litigation...." Compl. ¶ 73. Plaintiff states that his successor counsel has achieved better results by responding to the opposing party's false statements as Plaintiff asked Attorney Kantz to do and that successor counsel has been able to reduce alienation, withholding, and estrangement of Plaintiff's children and marital property. ¶¶ 75-6. Nothing in the Complaint could support a finding that Plaintiff would have achieved a better outcome had Defendants not used the irregular billing descriptions to cover up their conflict of interest or if Attorney Kantz had not withdrawn on April 3, 2017 after Plaintiff became represented by another attorney. The Complaint connects the pretext for the withdrawal, but not the withdrawal itself, and the conflict of interest, but not the billing descriptions, to the harm. The motion to withdraw and the conflict of interest both accrued before March 31, 2017. To the extent the harm caused by the withdrawal is that Plaintiff was prevented from filing an opposition to the motion, Defendant's Exhibits C and J demonstrate that the Court granted the motion to withdraw, and withdrawal was allowed upon successor counsel's appearance. No connection exists between the withdrawal itself and the inability to oppose the motion. Therefore, on the record before the Court, Attorney Kantz's withdrawal did not obstruct Plaintiffs opposition to the motion to withdraw, but the Court's Order on the motion did.
In short, Plaintiff has not shown that any of defendants' acts or omissions on or after March 31, 2017 caused him injury. After considering the Complaint, the motion and briefs, and the additional exhibits provided by Defendants, the Court concludes beyond a doubt that Plaintiff is entitled to no relief under any set of facts he may prove in support of his Complaint for legal malpractice.
The entry is
Defendants' Motion to Dismiss is GRANTED. Plaintiff s Complaint is dismissed with prejudice. This order constitutes a final judgment.
The clerk may enter this Order on the docket by reference. M.R. Civ. P. 79(a).
Entered on the Docket: 08/22/2023.