McDevitt v. Guenther

Decision Date20 July 2007
Docket NumberCiv. No. 06-00216 ACK/BMK.
Citation522 F.Supp.2d 1272
PartiesTimothy McDEVITT, Plaintiff, v. Lianne M. GUENTHER, Defendant.
CourtU.S. District Court — District of Hawaii
522 F.Supp.2d 1272
Timothy McDEVITT, Plaintiff,
Lianne M. GUENTHER, Defendant.
Civ. No. 06-00216 ACK/BMK.
United States District Court, D. Hawai`i.
July 20, 2007.

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Andrew S. Winer, William Meheula, Winer Meheula & Devens LLP, Honolulu, HI, for Plaintiff.

Dane L. Miller, Wilma Sur, Miller Tokuyama and Sur, Honolulu, HI, for Defendant.


ALAN C. KAY, Senior District Judge.


On April 20, 2006, Timothy McDevitt ("Plaintiff") filed a Complaint against Lianne M. Guenther, an attorney licensed to practice law in Minnesota, ("Defendant") relating to a prenuptial agreement that Defendant allegedly prepared for Plaintiff. The Complaint alleges that Defendant committed legal malpractice, negligence, breach of fiduciary duties, non-disclosure, and fraud, and violated Haw.Rev. Stat. § 480-2. See Complaint at 8. Although the Complaint initially sought $524,069.71 in actual damages, Plaintiff now seeks only $235,000 for the difference between the settlement he paid to his wife and the amount he would have allegedly paid under his desired prenuptial agreement. See Complaint at 8. Plaintiff has elected to withdraw claims for damages arising from temporary support payments, legal fees and mediation expenses incurred in the divorce proceeding, damage to his home, or increased rental expenses. See Pl. Opp. at 13. In addition to his claim for actual damages, Plaintiff seeks "[g]eneral, special, treble and punitive damages in amounts to be proven at the time of trial" and attorneys' fees, costs, and interest. See. Complaint at 9.

Previously on May 17, 2006, Defendant filed a Motion to Dismiss Complaint, or in the Alternative, to Transfer and a Memorandum in Support of Motion ("Motion to Dismiss"), seeking dismissal for lack of personal jurisdiction, improper venue, insufficient service of process, and/or failure to state a claim upon which relief can be granted, or in the alternative, transfer to the District of Minnesota. On July 25, 2006, the Court issued an Order denying Defendant's Motion to Dismiss, or in the alternative, Transfer.

On April 13, 2007, Defendant filed a Motion for Summary Judgment or in the Alternative, Partial Summary Judgment alleging that Plaintiff's claim for damages must fail because it is speculative and premised upon an inadmissible settlement agreement and that the statute of repose bars Plaintiff's unlawful business practices claim ("Def.Motion"). The same day, Defendant also filed a statement of facts in support of her Motion ("Def.CSF"). Simultaneously, Defendant filed a Motion. in Limine to exclude evidence of Plaintiffs settlement with his wife to calculate the amount of damage ("Def. Limine Mot.").

On April 24, 2007, Plaintiff filed a Motion for Partial Summary Judgment alleging the existence of an attorney-client relationship

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between Plaintiff McDevitt and Defendant Guenther ("Pl.Motion"). Plaintiff also filed, a concise statement of facts ("Pl.CSF").

On June 8, 2007, Plaintiff filed an Opposition to Defendant's Motion ("PI.Opp."). Plaintiff also filed an Opposition to Defendant's Motion in Limine ("Pl. Limine Opp."). The same day, Defendant filed an Opposition to Plaintiffs Motion ("Def.Opp."). Defendant also filed a Counter-Motion for Summary Judgment on the issue of the existence of an attorney-client relationship.

Plaintiff filed a Motion to Strike Defendant's Counter-Motion on June 12, 2007 along with a Motion to Shorten Time to hear the Motion to Strike. On June 14, 2007, Magistrate Judge Kurren issued an Order Granting Plaintiffs Motion to Strike because Defendant's Counter-Motion was filed after the dispositive motion deadline specified in the Rule 16 scheduling order. Subsequently, Defendant filed a Motion to Amend the Rule 16 Scheduling Motion, or Alternatively for Leave to File Her Counter-Motion for Summary Judgment on the issue of the existence of an attorney-client relationship with McDevitt. Plaintiff filed an Opposition. The matter was heard before Magistrate Judge Kurren on June 21, 2007, at which hearing Magistrate Judge Kurren ruled from the bench granting. Defendant's Motion to file her Counter-Motion for Summary Judgment.

On June 15, 2007, Defendant filed a Reply in support of her Motion for Summary Judgment and her Motion in Limine. The same day, Plaintiff filed a Reply in support of his Partial Motion for Summary Judgment and a Concise Statement in Opposition to Defendant's Motion.

On June 19, 2007, Defendant filed an Objection to and Motion Strike the Testimony of Charles T. Kleintop, Plaintiffs expert. On June 21, 2007, Plaintiff filed a Response to Defendant's Objection.

A hearing on (1) Defendant's Motion for Summary Judgement or in the alternative, Partial Summary Judgment; (2) Defendant's Motion in Limine; (3) Plaintiffs Motion for Partial Summary Judgment; (4) Defendant's Counter-Motion for Summary Judgment; and (5) Defendant's Motion to Strike Plaintiffs Expert's Testimony was heard on Wednesday, June 27, 2007 at 10:30 a.m.


Plaintiff McDevitt is, and was at all pertinent times, a resident of the State of Hawai`I, where he practices cosmetic and reconstructive surgery of the eyelids, Lacrimal System and Orbital Laser Skin Resurfacing in Honolulu, Hawai`I. See Complaint at 1-2. Defendant Guenther is, and was at all pertinent times, a resident of the State of Minnesota, where she is a sole legal practitioner. Id. at 2.

Guenther previously attended college with Andrea Yoakam ("Yoakam") in Minnesota, where they became "best friends" and have stayed close. See Guenther Depo. at 13; Yoakam Depo. at 17-18. Plaintiff met Defendant through Yoakam in 1999 and knew that she was Yoakam's best friend. See McDevitt Depo. at 51. In 2000, Yoakam was living in Hawai`I, where she worked as a nurse and was engaged to be married to Plaintiff. See Complaint at 2; McDevitt Depo. at 48; McDevitt Aff. at ¶ 3.

Prior to becoming engaged, McDevitt raised the issue of a prenuptial agreement

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with Yoakam and Yoakam said she was opposed. See McDevitt Depo. at 52-53. They discussed it again after getting engaged and Yoakam reacted negatively and became very upset. See Yoakam Depo. at 26.

According to McDevitt, in June or July of 2000, McDevitt, Yoakam, and Guenther engaged in three-way conversations about the advisability of a prenuptial agreement. See McDevitt Depo. at 76-78. Guenther testified that during these discussions she told McDevitt, "I don't know what Hawaii law requires." See Guenther Depo. at 40. According to Guenther, in August of 2000, Yoakam asked Guenther to-look at a prenuptial agreement, to which Guenther stated she replied "I don't know what the law in Hawaii is," and advised Yoakam to get her own lawyer in Hawai`I. See Guenther Depo. at 34-36. Guenther and Yoakam both testified that Guenther orally told McDevitt and Yoakam that they needed their own lawyers in Hawan for the purposes of preparing a premarital agreement. See Guenther Depo. at 70; Yoakam Depo. at 69. McDevitt asserts that he does not recall Guenther telling him that she was not authorized to practice law in Hawan and that he and Yoakam should get their own attorneys. See McDevitt Depo. at 81. During their conversations, McDevitt did not explicitly ask Guenther to represent him in the prenuptial agreement negotiations. Id. Guenther acknowledges that she talked with both McDevitt and Yoakam about the prenuptial agreement and suggested that McDevitt fund an IRA on Yoakam's behalf if she was not working outside the home. See Guenther Depo at 49.

On August 20, 2000, McDevitt faxed a three-page note to Guenther which stated, "Lianne, Please review, add what you want. Use template and fax back to me ... Please charge me your usual fee." The second page contained the following:

Agreements between Andrea Yoakam (AY) and Tim McDevitt (TM):

1. TM will open IRA account for AY and fund account at legal maximum per year for every year of marriage.

2. In event of divorce, TM will pay AY $250,000.00. She will be entitled to no additional payment or property.

3. TM will not be responsible for the personal debts accumulated by AY before or after marriage.

The third page of the fax sent by McDevitt on August 20, 2000 contained notes disclosing assets of McDevitt. See McDevitt Depo. at 74. Yoakam denies ever agreeing to the term limiting McDevitt's payment in the event of a divorce to $250,000. See Yoakam Depo. at 58. Yoakam did not sign the faxed document containing the $250,000 limitation term. See McDevitt Depo. at 170-171.

McDevitt stated that when he sent this fax, he believed he was engaging Guenther to act as his attorney and to advise and assist him in the preparation of a prenuptial agreement. See McDevitt Aff. at ¶ 6. Guenther testified that she did not understand the fax as requesting her to perform legal services, but that she was to review the information as a friend and type it up on her computer. See Guenther Depo. at 65.

During the time of these discussions, Guenther says she had discussions with Yoakam alone, but no discussions with McDevitt alone. See Guenther Depo. at 41-42. Guenther and Yoakam discussed Yoakam's concern that the $250,000 lump sum payment term was not fair to her if she was married for a long period of time, and they discussed a graduated scale payment system. See Guenther Depo. at 51-53; Yoakam Depo. at 59-60. Yoakam testified that when she discussed the prenuptial with Guenther, "I remember just telling her that I couldn't — it was very

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upsetting to me, terribly upsetting; and, quite frankly, I wanted her to handle...

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