Reppucci v. Nadeau, 092220 MESC, Yor-19-40

Docket Nº:Yor-19-40
Opinion Judge:MEAD, J.
Attorney:Karen E. Wolfram, Esq. (orally), Fairfield & Associates, P.A., Kennebunk, for appellants James P. Nadeau and Nadeau Law Offices, PLLC Gene R. Libby, Esq., and Keith P. Richard, Esq. (orally), Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellee Wendy Reppucci
Judge Panel:Panel: MEAD, GORMAN, JABAR, and HUMPHREY, JJ., and HJELM, A.R.J.
Case Date:September 22, 2020
Court:Supreme Judicial Court of Maine

2020 ME 114




No. Yor-19-40

Supreme Court of Maine

September 22, 2020

Argued: September 26, 2019

Karen E. Wolfram, Esq. (orally), Fairfield & Associates, P.A., Kennebunk, for appellants James P. Nadeau and Nadeau Law Offices, PLLC

Gene R. Libby, Esq., and Keith P. Richard, Esq. (orally), Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellee Wendy Reppucci

Panel: MEAD, GORMAN," [*] JABAR, and HUMPHREY, JJ., and HJELM, A.R.J." [**]


[¶1] James P. Nadeau and Nadeau Law Offices, PLLC (Nadeau), appeal from a judgment entered by the Superior Court (York County, O'Neil, J.), following a jury trial, awarding Wendy Reppucci $91, 172, plus costs and interest, on her complaint for legal malpractice arising from Nadeau's representation of Reppucci in a divorce action. Nadeau contends that, concerning some of Reppucci's claims for damages, the court erred in instructing the jury on Reppucci's burden to prove proximate cause using language that we first discussed in Niehoff v. Shankman & Associates Legal Center, P.A., 2000 ME 214, ¶ 10, 763 A.2d 121.1

[¶2] We disagree and affirm the judgment. In doing so, we clarify that what we have termed the "modified" or "failure to plead" proximate cause standard in Niehoff and in two other cases[2] is not an independent alternative test, but is rather a case-specific application of the proximate cause standard that we have always applied in legal malpractice cases.


[¶3] Attorney James Nadeau represented Wendy Reppucci in her 2008 divorce from Richard Reppucci. The divorce judgment, entered in the District Court (York, ]anelle, J.~) following a trial, contained the following provisions that are at issue in this appeal: • spousal support was not awarded to either party "now or in the future";

• attorney fees were to be paid by the party incurring them;

• the marital home was awarded to Wendy, subject to her payment to Richard of $36, 350 plus 5% annual interest for his equity interest once any of the several triggering events specified in the judgment occurred;

• the value of Richard's military retirement benefits as of the date of the divorce judgment was divided equally between the parties; and

• the value of Richard's Thrift Savings Plan (TSP)-essentially the military version of a 401(k) account-calculated as of the date of the judgment was divided equally between the parties.

Because Richard had served in the Air Force, a benefit providing income to the survivors of military members known as the Survivor Benefit Plan (SBP) was potentially available to Wendy. It was not addressed in a proposed judgment that Nadeau submitted or in the divorce judgment.

[¶4] In September 2014, Reppucci filed a two-count complaint against Nadeau in the Superior Court alleging legal malpractice and breach of fiduciary duty.[3] Concerning the claims for which the jury ultimately awarded damages, Reppucci asserted, either in the complaint or at trial, that Nadeau was negligent when he • failed to properly advise her concerning the availability of spousal support and to advocate for spousal support when it would have been reasonable for the court to award it;

• failed to request attorney fees when she could not afford to pay them;

• failed to obtain an appraisal of the value of the marital home, challenge the 5% interest rate on Richard's equity award as excessive, advise her that the future equity payment to Richard would prevent her from refinancing the mortgage, or advocate that the parties share the costs incurred in the future sale of the home;

• failed to advise her of her eligibility to be covered by the SBP or to advocate for its inclusion in the divorce judgment, resulting in the opportunity for coverage being permanently lost;

• proposed language that did not comply with federal law in dividing Richard's military retirement benefits, resulting in additional legal expenses to have the judgment corrected before it was accepted by the Department of Defense; and

• failed to propose language for the judgment's TSP provision that would be accepted by the military, and failed to conduct discovery that would have revealed Richard's withdrawal of funds from his TSP account, with the result that no money was available once the judgment was eventually corrected.

[¶5] The case was tried to a jury in June 2018. The jury found that Nadeau had breached the standard of care and awarded Reppucci a total of $91, 172 in damages on her claims related to spousal support, attorney fees, the marital home, the SBP, military retirement benefits, and the TSP. The court entered a judgment in accordance with the verdict.

[¶6] Nadeau filed post-judgment motions for judgment as a matter of law and for a new trial, which the court denied following a hearing. Nadeau timely appealed. See M.R. App. P. 2B(c)(1).


A. Proximate Cause

[¶7] We have said that [t]o prove attorney malpractice, a plaintiff must show (1) a breach by the defendant of the 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.

Brooks v. Lemieux, 2017 ME 55, ¶ 9, 157 A.3d 798 (quotation marks omitted). 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." Niehoff, 2000 ME 214, ¶ 9, 763 A.2d 121; see Garland v. Roy, 2009 ME 86, ¶ 20, 976 A.2d 940. Without such proof, the existence of a causal connection between the negligent conduct and any damages is speculative or conjectural, and cannot support a judgment favorable to the plaintiff. See Niehoff, 2000 ME 214, ¶ 8, 763 A.2d 121.

[¶8] In 2000, we said in Niehoff that a modified proximate cause test applies in "failure to plead" legal malpractice actions. Id. ¶ 10; see Brooks, 2017 ME 55, ¶ 12, 157 A.3d 798. Niehoffwas a case where a summary judgment had been entered for the defendant-attorney. 2000 ME 214, ¶ 5, 763 A.2d 121. Addressing the legal standard to be applied in that procedural context, we stated, On appeal from a grant of summary judgment, a plaintiff-appellant in a "failure to plead" legal malpractice action must demonstrate that... (1) the defendant attorney was negligent in representation of the plaintiff; and (2) the attorney's negligence caused the plaintiff to lose an opportunity to achieve a result, favorable to the plaintiff, which (i) the law allows; and (ii) the facts generated by [the parties' summary judgment filings] would support, if the facts were believed by the jury. Where a plaintiff generates fact disputes on these issues, summary judgment must be denied and plaintiff is entitled to proceed to trial.

Id. ¶ 10; see MSR Recycling, LLC v. Weeks & Hutchins, LLC, 2019 ME 125, ¶ 6, 2l4A, 3dl.

[¶9] This formulation has proved to be a source of confusion as parties and trial courts have thought it necessary to distinguish "failure to plead" cases from "garden-variety" malpractice claims so as to apply either the "modified test" or the "ordinary" proximate cause test. See Brooks, 2017 ME 55, ¶¶ 11-13 & n.5, 157 A.3d 798; Niehoff, 2000 ME 214, ¶¶ 9-10, 763 A.2d 121. We take this opportunity to clarify the nature of what we have sometimes referred to as the "modified malpractice standard," Brooks, 2017 ME 55, ¶ 12, 157 A.3d 798, which originated in Niehoff.

[¶10] To understand our opinion in Niehoff, it is critical to recognize that it addressed only what a plaintiff must show to defeat a defendant's motion for a summary judgment based on an assertion that no causal relationship exists between the alleged negligence and claimed damages. A moving party is not entitled to summary judgment when the opponent generates disputed issues of material fact, see M.R. Civ. P. 56(c); InfoBridge, LLC v. Chimani, Inc., 2020 ME 41, ¶¶ 12-13, 228 A.3d 721, and so, as a summary judgment case, Niehoff does nothing more than identify the salient issues for a court to consider in that context. In essence, when adjudicating a summary judgment motion, the court must determine whether, based on the summary judgment record, the factfinder in the malpractice case could conclude that the claim that the attorney failed to assert in the underlying action would have yielded a...

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