Corey v. Norman, Hanson & DeTroy

• Decision Date: 28 December 1999
• Citation: 742 A.2d 933,1999 ME 196
• Court: Maine Supreme Court
• Parties: Susan W. COREY v. NORMAN, HANSON & DETROY et al.

742 A.2d 933

1999 ME 196

Susan W. COREY v. NORMAN, HANSON & DETROY et al.

Supreme Judicial Court of Maine.

Argued February 1, 1999.

Decided December 28, 1999.

Michael J. Waxman, Portland, for plaintiff.

Harrison L. Richardson, (orally), John S. Whitman, Paul R. Johnson, Richardson, Whitman, Large & Badger, P.C., (for Norman, Hanson & DeTroy) James M. Bowie, (orally), Thompson & Bowie, Portland, (for Dawson Smith Purvis & Bassett) for defendants.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER and CALKINS, JJ.

CLIFFORD, J.

[¶ 1] Susan W. Corey appeals from a summary judgment (Cumberland County, Cole J.) entered in favor of the defendants. The court concluded that Susan failed to establish the necessary elements to establish malpractice in her action brought against the law firm of Norman, Hanson & DeTroy and the accounting firm of Dawson, Smith, Purvis & Bassett, P.A. (referred to collectively as NH & D). Susan contends that the trial court erred in basing its decision to grant a summary judgment on what it concluded was an insufficient statement of material facts filed by Susan pursuant to M.R. Civ. P. 7(d)(2). Susan also appeals from an order (Saufley, J.) requiring her attorney to return to the attorney for NH & D a document that the trial court found to be privileged. She contends that the court erred in finding that an inadvertent disclosure of a privileged document does not constitute a waiver of the attorney-client privilege. We affirm both the summary judgment and the court's order regarding the privileged document.

[¶ 2] In the spring of 1995, Susan retained attorney Peter DeTroy of NH & D to represent her in divorce proceedings against her then husband John B. Corey, a dentist specializing in periodontics. De-Troy hired Dawson, Smith, Purvis & Bassett, P.A., certified public accountants, to value assets of the marital estate and to assist in distinguishing between marital and nonmarital property for purposes of the divorce. The parties agreed that John Corey's dental practice was marital property. DeTroy stipulated to the $37,700 valuation of the dental practice proposed by John's attorney. No formal appraisal of the dental practice was conducted by DeTroy or the accountants he hired. The divorce was finalized in March of 1996. In the divorce judgment, the stipulated value of the dental practice was accepted by the court¹ and the practice was set aside to John. More than $1.6 million in marital property was awarded to Susan. In addition, John was ordered to pay his former wife alimony in excess of $300,000 over ten years.

[¶ 3] In January of 1997, Susan filed a complaint in the Superior Court charging NH & D with professional negligence. Susan alleged that NH & D had a duty to represent her "with reasonable care, skill and diligence possessed and exercised by the ordinary attorney in similar circumstances" and a duty to maximize her property distribution by "diligently consider[ing] and valu[ing] all marital assets." According to Susan, NH & D breached that duty by failing to obtain an independent valuation and by stipulating to the $37,700 valuation of the dental practice. This breach, Susan alleges, "caused the dental practice, a valuable marital asset, to be seriously undervalued," thereby resulting in a property distribution to Susan "of substantially less value than that to which she was entitled." The $37,700 figure to which NH & D stipulated was the value of the dental and business equipment less debt, and did not account for the good will of the dental practice, which, Susan contends, has a substantial value.

[¶ 4] After extensive discovery, NH & D filed a motion for a summary judgment, contending:

As a matter of law, [Susan Corey] cannot prove any set of facts under which [NH & D] may be liable to [Susan], because [Susan] has no evidence that any act or omission by [NH & D] was the proximate cause of any alleged damage to [Susan].²

In its M.R. Civ. P. 7(d)(1) statement of material facts supporting its motion for a summary judgment, NH & D included excerpts from the deposition testimony of Susan's designated legal expert, Robert Nadeau, that reflected his reluctance to offer an opinion on proximate causation. Paragraphs 4 and 5 of NH & D's Rule 7(d)(1) statement read as follows:

4. Plaintiff has designated Robert M.A. Nadeau, Esq. as an expert in this case. Mr. Nadeau is an attorney . . . .

5. Mr. Nadeau was specifically asked if he was prepared to testify as to issues of proximate cause. He clearly and unequivocally stated that he was not:

Q: When you expressed the opinion that has now been refined, I guess I would describe it—when you express that opinion in court, do you also intend to express an opinion as to whether or not the claimed failure to do whatever it is you say my client [Defendant NH & D] should have done was the proximate cause of anything?

A: I can't make a conclusion with respect to proximate cause. That is a conclusion for the judge or the jury to make when they hear all the facts. Again, I am not privy to all the facts.

. . . .

Q: You're not going to offer any opinion as to whether or not some conduct on the part of [Defendant NH & D] was the proximate cause of some damage to Mrs. Corey?

A: I am not aware that I have been asked to do that, no.

[¶ 5] In her opposition to NH & D's motion for a summary judgment, submitted pursuant to Rule 7(d)(2), Susan relied on different excerpts from Nadeau's deposition testimony:

Q: Have you ... ever been asked by Mr. Waxman to evaluate the settlement proposal that was advanced but ultimately not accepted by Ms. Corey?

A: I may—I believe I was asked to offer an opinion as to causation based on certain hypothetical information presented to me by him, but I was, to the best of my recollection, never asked to make any kind of comparisons as to—or concerning the actual settlement versus alternatives in the absence of the hypotheticals presented to me.

Q: What hypothetical was presented to you?

. . . .

Q: All right. Well, you take your time [in finding the letter that presented the hypothetical, if there was one] because I want to know what if anything, you were asked to assume in the hypothetical and then we'll move from there under what conclusion, if any, you expressed.

. . . .

Q: As best you can recall [not finding the hypothetical in the correspondence], describe the hypothesis that you believe was presented to you.

A: I believe it was as simple as something to the effect of assuming that Attorney DeTroy had failed to advise Ms. Corey regarding the appropriateness of obtaining a business valuation of the dental practice and, in particular, the value of goodwill of the practice and assuming that we can establish through an expert witness that that omission had significant value to Ms. Corey, would you have an opinion regarding whether such failure to advise the client to obtain a complete business valuation of the practice would be the proximate cause of whatever losses his expert could establish. . . .

. . . .

Q: Basically the hypothesis was if he had gotten one, would it have made a difference?

A: Assuming that he could establish through an expert—

Q: Right.

A: —there was an economic loss. It was basically a causation type.

Q: And your answer to that was you couldn't express that opinion, right?

A: No. My answer was assuming that you could establish there would have been a loss, that, yes, I could—I would offer an opinion that failure to advise a client—you could also establish that there was, in fact, such a failure to advise—proximately caused that loss.

[¶ 6] The Superior Court entered a summary judgment in favor of NH & D based on Susan's failure to present sufficient evidence of any loss that was proximately caused by negligence on the part of NH & D. Therefore, the court concluded, her claim for damages was overly speculative. Susan has appealed from that judgment.

I. SUMMARY JUDGMENT

[¶ 7] We review the entry of a summary judgment "for errors of law, viewing the evidence in the light most favorable to the party against whom the judgment was entered." Rodrigue v. Rodrigue, 1997 ME 99, ¶ 8, 694 A.2d 924, 926, quoted in Denman v. Peoples Heritage Bank, Inc., 1998 ME 12, ¶ 3, 704 A.2d 411, 413

. A summary judgment is properly entered if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the statements required by Rule 7(d) show that there is no genuine issue as to any material fact set forth in those statements and that any party is entitled to a judgment as a matter of law.

M.R. Civ. P. 56(c). "To survive a defendant's motion for a summary judgment, a plaintiff must produce evidence that, if produced at trial would be sufficient to resist a motion for a judgment as a matter of law." Rodrigue, 1997 ME 99, ¶ 8,694 A.2d at 926,quoted in Prescott v. State Tax Assessor, 1998 ME 250, ¶ 4, 721 A.2d 169, 171

.

[¶ 8] M.R. Civ. P. 7(d)(1) requires that "upon any motion for summary judgment there shall be annexed to the motion a separate, short and concise statement of the material facts, supported by appropriate record references, as to which the moving party contends there is no genuine issue to be tried." Id. Likewise, Rule 7(d)(2) requires a party opposing a summary judgment to file "a separate, short and concise statement of the material facts, supported by appropriate record references, as to which it is contended that there exists a genuine issue to be tried."³ See M.R. Civ. P. 7(d)(2). In determining whether to grant or deny a motion for a summary judgment, the trial court "is to consider only the portions of the record referred to, and the material facts set forth, in the Rule 7(d) statements." Handy Boat Serv., Inc. v. Professional Servs., Inc., 1998 ME 134, ¶ 12, 711 A.2d 1306, 1310, quoted in Prescott, 1998 ME 250, ¶ 5,

721 A.2d at 172. The statement of material facts requirement of Rule 7(d) is designed to force...