Jourdain v. Dineen

• Decision Date: 09 July 1987
• Parties: Laurent J. JOURDAIN and Rita M. Jourdain v. James M. DINEEN.
• Court: Maine Supreme Court

Page 1304

527 A.2d 1304

Laurent J. JOURDAIN and Rita M. Jourdain v. James M. DINEEN.

Supreme Judicial Court of Maine.

Argued June 11, 1987.

Decided July 9, 1987.

Peter L. Murray, John C. Bannon (orally), Murray, Plumb & Murray, Portland, for plaintiffs.

James M. Dineen (orally), Kittery, pro se.

Before McKUSICK, C.J., and NICHOLS, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

SCOLNIK, Justice.

James M. Dineen (Dineen) appeals from a judgment entered by the Superior Court, York County, upon a jury verdict finding that Dineen committed legal malpractice and was guilty of fraud during the course of his representation of the Jourdains in an underlying negligence action. ¹ Dineen argues that the Superior Court erred by failing to require the plaintiffs to prove the ultimate collectibility against the original tortfeasor of any judgment they would have obtained in the underlying negligence action, by permitting an award of damages for fraud without proof of pecuniary loss, and by ruling that pre-judgment interest on the fraud claim was to be calculated from the date of the filing of the malpractice complaint. The plaintiffs cross-appeal that portion of the court's judgment declining to measure pre-judgment interest on the malpractice claim from the last date on which Dineen could have filed a personal injury action on behalf of the Jourdains within the applicable statute of limitations.

I.

On January 4, 1971 the Jourdains' automobile was struck from behind by an automobile driven by Anne Caramahalis. The Jourdains suffered injuries as a result of this collision. In early 1974 the Jourdains retained James M. and his father, James H. Dineen, also a practicing attorney, to represent them in a personal injury action against Caramahalis. Dineen accordingly entered into negotiations with Caramahalis's automobile insurance carrier. As a result of those initial negotiations, the insurance company reimbursed the Jourdains for the property damage to their automobile. During this time the Jourdains often telephoned Dineen to determine the status of their case and were told that the matter was progressing.

The statute of limitations on the Jourdains' personal injury claim expired on January 4, 1977. Dineen failed to file the personal injury action within the statute of limitations, filing the lawsuit on January 6, 1977. Dineen became aware of the statute of limitations problem when counsel for Caramahalis answered the complaint in February 1977. Caramahalis moved for a summary judgment based on the expiration of the six year period set forth in the statute of limitations and judgment was entered accordingly for Caramahalis. Dineen, however, did not inform the Jourdains about the true status of their lawsuit, and continued to tell them that their case was progressing. In November 1978, Dineen finally told the Jourdains that he had failed to file their lawsuit in a timely manner.

On October 27, 1979 the Jourdains commenced against Dineen the present legal malpractice action. On February 17, 1984 the complaint was amended to add a fraud claim against Dineen based on his failure to disclose to the Jourdains that he had failed to file the negligence action within the time period prescribed by the statute of limitations. A trial was held in October 1985, and the jury returned a verdict in favor of the Jourdains. The jury awarded $30,000 to Rita Jourdain and $5,000 to Laurent Jourdain on the malpractice claim and $10,000 to Rita Jourdain and $2,500 to Laurent Jourdain on the fraud claim.

Dineen thereafter filed a "Motion for Judgment Notwithstanding the Verdict, or in the Alternative, Motion for New Trial, to Amend the Judgment and for Remittitur." A post-judgment hearing was held at which the court granted Dineen's motion to amend the judgment. The court amended the judgment to permit pre-judgment interest on the malpractice claim to run from the date of the filing of the malpractice complaint instead of from the last date on which Dineen could have filed the underlying personal injury action within the statute of limitations. Both parties appealed in a timely manner after entry of the amended judgment.

II.

The Superior Court ruled that the plaintiffs were not required to prove the collectibility of any judgment they would have obtained in the underlying negligence action against Caramahalis. The court noted that existing Maine law places no such burden on a plaintiff in a legal malpractice action and observed that it would be unfair to require the plaintiff to prove "collectibility" since that issue would have had no relevance in the underlying, lost negligence action. Dineen contends that while no Maine cases have addressed the issue, the majority of jurisdictions that have done so require a plaintiff to prove "collectibility" in order to maintain successfully a viable legal malpractice action.

We have previously noted that "[a]ssuming negligent representation, a plaintiff must prove nevertheless that he could have been successful in the initial suit 'absent the attorney's negligent omission to act.' " Schneider v. Richardson, 411 A.2d 656, 658 (Me.1979) (quoting Sohn v. Bernstein, 279 A.2d 529, 532 (Me.1971)). The plaintiff must therefore submit proof of that claim to the jury as a "trial within a trial" of the attorney malpractice action. Dineen does not argue that he was not negligent. Rather, he contends that even if he were negligent, the Jourdains' legal malpractice claim against him must fail because they did not present evidence at trial establishing that they would have collected a judgment rendered against the original tortfeasor.

Many jurisdictions addressing this issue have concluded that collectibility of the judgment is an element of proof in a legal malpractice action and that the burden is generally placed on the plaintiff to prove collectibility. See, e.g., Taylor Oil Co. v. Weisensee, 334 N.W.2d 27, 29 n. 2 (S.D.1983); McDow v. Dixon, 138 Ga.App. 338, 226 S.E.2d 145, 146 (1976). We decline, however, to adopt such a rule for legal malpractice actions in Maine. Because uncollectibility of a judgment should be treated as a matter constituting an avoidance or mitigation of the consequences of one's negligent act, it must be pleaded and proved by the defendant. See M.R.Civ.P. 8(c). Accordingly, we adopt the rule that uncollectibility is an affirmative defense that must be pleaded and proved by the defendant. See Hoppe v. Ranzini, 158 N.J.Super. 158, 385 A.2d 913, 920 (App.Div.1978) (burden of proof on defendant). Since Dineen did not plead or prove uncollectibility, we affirm the Superior Court's ruling on this issue.

III.

Dineen next contends that the evidence presented at trial by the Jourdains was insufficient to support the fraud award rendered by the jury. The jury's verdict against Dineen must be upheld if any credible evidence, and all justifiable inferences drawn from such evidence, viewed in the light most favorable to the plaintiff, supports the verdict. See Blackman v. Jackson, 458 A.2d 755, 756 (Me.1983). Dineen argues specifically that the Jourdains failed to establish that they suffered any pecuniary loss as a result of the defendant's concealment. Absent some pecuniary loss, he argues, the Jourdains' fraud claim must fail. The Jourdains contend that the mental and emotional pain and suffering brought on by Dineen's concealment satisfies the "damages" element of a fraud claim. In the alternative, the Jourdains maintain that they presented evidence of pecuniary loss sufficient to support the jury's verdict.

We have previously set forth the elements that must be proved to sustain a fraud claim:

[A] defendant is liable for fraud or deceit if he (1) makes a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or to refrain from acting in reliance upon it, and (5) the plaintiff justifiably relies upon the representation as true and acts upon it to his damage.

Letellier v. Small, 400 A.2d 371, 376 (Me.1979) (footnote omitted). The central dispute here is whether the "damage" element of a fraud claim may only be established by proof of pecuniary loss.

We have previously implied that pecuniary loss is a necessary element of proof in a fraud action. For example, in McKinnon v. Tibbetts, 440 A.2d 1028 (Me.1982), an attorney malpractice case, we affirmed a fraud...