Spickler v. York

• Decision Date: 07 December 1989
• Court: Maine Supreme Court
• Parties: Robert D. SPICKLER v. Robert M. YORK.

Page 1385

566 A.2d 1385

Robert D. SPICKLER v. Robert M. YORK.

Supreme Judicial Court of Maine.

Argued Oct. 6, 1989.

Decided Dec. 7, 1989.

Robert D. Spickler (orally), Phippsburg, for plaintiff.

Evan M. Hansen (orally), Jonathan S. Piper, Preti, Flaherty, Beliveau & Pachios, Portland, for defendant.

Before McKUSICK, C.J., and ROBERTS, CLIFFORD and COLLINS, JJ.

PER CURIAM.

Plaintiff-Appellee Robert D. Spickler, the purchaser-developer in a substantial land transaction, brought an action against Defendant-Appellant Robert M. York, an attorney, contending that York committed malpractice by negligently failing to reduce to writing certain terms of the real estate purchase agreement. Spickler alleges that York's malpractice caused Spickler to lose a 300 acre parcel of land in a previous law suit and to suffer substantial financial loss. The Superior Court (Cumberland County, McKinley, J.) entered judgment on a jury verdict for Spickler on the issue of liability. The interlocutory judgment was reported to this Court on York's motion. We vacate the judgment of the Superior Court.

I.

On November 6 and 7, 1973, Plaintiff-Appellee Robert D. Spickler and Dr. Charles Pettengill purchased Parkers Head Neck, a 300 acre peninsula on the lower Kennebec River in Phippsburg, from Roger Dube, with the intent to subdivide the property. Although the issue is in dispute, the jury found that Defendant-Appellant Robert M. York represented both Spickler and Pettengill at the closing of the real estate transaction. At that time Roger Dube was the sole owner of R.D. Realty Corp., a corporation whose only asset was Parkers Head Neck. Rather than purchase the property directly, Spickler, Pettengill, and Dube decided that Spickler and Pettengill would purchase all of the stock of R.D. Realty. As consideration, Dube received $30,000 at the closing, and R.D. Realty executed four notes prepared by York, totaling $270,000, secured by four separate mortgages on the property.

All parties were aware at the time of closing that R.D. Realty did not possess clear title to Parkers Head Neck. York "composed" a personal guarantee, dated November 7, 1973, executed at the closing, by which Dube "agreed to guarantee and warrant title to the property described in said mortgages, [to] bring an action to clear title as soon as possible to the premises described in said mortgages and further [agreed] not to assign his [right] in said mortgages and notes until clear title had been determined by the proper courts."

Spickler alleges that York failed to memorialize an oral agreement with Dube that mortgage payments owed to Dube by R.D. Realty would not become due until the quiet title actions were completed. This act of omission is the alleged malpractice in this suit. Spickler asserts that he did not know of York's failure to commit the agreement to writing until November, 1976.

Dube's actions to quiet title were not completed until May, 1976. Between the date of closing and 1976, Spickler engaged in litigation with the Department of Environmental Protection to obtain the right to subdivide the property, and eventually began subdivision work. A dispute arose between Spickler and Dube concerning when installment payments were due on the Dube held notes, and in March, 1976, Dube declared R.D. Realty to be in default and sought to foreclose on the property. Soon thereafter Spickler attempted to sell subdivision lots to several buyers, but Dube refused to release the mortgages. Spickler bought out Pettengill's share of R.D. Realty and became sole owner in April, 1976.

In August, 1976, in an action brought before the case on appeal here, R.D. Realty sued Dube for fraud, breach of warranty of title, breach of contract, and breach of an agreement to pay Spickler's brokerage commission ("the Dube action"). Dube counterclaimed, seeking a declaratory judgment that the mortgage notes executed by R.D. Realty were in default and that Dube was entitled to a re-conveyance of the property. The Superior Court entered judgment on a jury verdict against Spickler on all counts except the brokerage commissions. On appeal, we affirmed the Superior Court's judgment.

Meanwhile, Spickler brought this suit, pro se, against York in November, 1979. Spickler alleges that York, as Spickler's attorney in the Parkers Head Neck transaction, was negligent because he failed to memorialize the oral agreement by which Dube would postpone the time at which mortgage payments would become due until all quiet title actions were completed. Specifically, Spickler claims that York's negligence caused him to lose the Dube action and to lose Parkers Head Neck to Dube. The Superior Court bifurcated the trial. The first half of the trial was held from April 6 to April 15, 1988, solely on the issue of liability. After a six day jury trial, the Superior Court entered judgment on a jury verdict for Spickler on the issue of liability. On York's motion, that interlocutory judgment was reported pursuant to M.R.Civ.P. 72. Although York now alleges over a dozen counts of error, we address only three of his claims here.

II.

The first issue we address is whether the Superior Court committed reversible error by ordering, on the third day of trial, that Spickler would be given until the sixth day of trial to designate an expert witness whose testimony would address the standard of professional care that York should have exercised during the Parkers Head Neck closing. Originally, on April 1, 1985, the Superior Court ordered Spickler to designate any expert witnesses by June 30, 1985. Spickler failed to do so. Later, on August 29, 1986, the Superior Court issued a pretrial scheduling order providing for the expedited completion of discovery by October 1, 1986, and requiring the early designation of expert witnesses. Spickler did not designate any expert witnesses at this point either. When trial began on April 4, 1988, Spickler still had not designated any expert witnesses.

At trial, York moved for a directed verdict on the ground that, in the absence of expert testimony, Spickler could not establish the standard of care that York should have applied when handling the Parkers Head Neck transaction. Therefore, York argued, Spickler could not prove his legal malpractice claim. Although the Superior Court agreed that expert testimony would be necessary for Spickler to meet his burden of proof, the court denied York's motion. On the third day of trial, over York's objection, the Superior Court gave Spickler until the sixth day of trial to designate a liability expert and to provide information on the content of his testimony. Spickler designated an expert, Dwayne Fitzgerald, on the fourth day of trial.

In the brief time that remained before the end of the trial, York made efforts to obtain an expert to rebut Fitzgerald's testimony. He was unsuccessful. The Superior Court instructed the jury to draw no inferences from York's failure to present the testimony of a liability expert of his own. On appeal, York argues that the Superior Court abused its discretion and severely prejudiced York by permitting Spickler to call a last minute expert witness. He argues that the Superior Court should have excluded Fitzgerald's testimony as a sanction for Spickler's failure to designate an expert within the time ordered by the court. ¹

Although the determination of admissibility of testimony, including the testimony of an expert witness, falls within the discretion of the trial justice, we will overturn the trial justice's determination for a clear abuse of that discretion. See Hodgdon v. Jones, 538 A.2d 281, 282 (Me.1988). Similarly, although we will not "lightly overrule" a trial justice's decision not to impose a sanction that excludes the testimony of a surprise witness, Pettitt v. Lizotte, 454 A.2d 329, 332 (Me.1982) (citing Reeves v. Travelers Insurance Cos., 421 A.2d 47, 50 (Me.1980)), we will not permit the decision to stand where an abuse of discretion results. See Reeves, 421 A.2d at 50. Here, the Superior Court abused its discretion by failing to exclude Fitzgerald's testimony.

Spickler failed to comply with the Superior Court's pretrial orders to designate expert witnesses. M.R.Civ.P. 16(h) provides in pertinent part:

(h) Sanctions. If a party fails to comply with the requirements of this rule or any order made hereunder, the court shall impose upon the party or the party's attorney, or both, such sanctions as the circumstances warrant, which may include ... the exclusion of evidence at the trial....

(Emphasis added). We have stressed in the past the importance of compelling compliance with discovery and pretrial orders. In Butler v. Poulin, 500 A.2d 257 (Me.1985), we stated, "[c]onduct of counsel or his clients that frustrates the beneficent purposes ... of discovery orders must be appropriately penalized." Id., at 259 (citing Reeves, 421 A.2d at 50). In Reeves, we stated, "[i]t is the purpose of both the discovery rules and the pretrial conference to eliminate the sporting theory of justice, ... and to enforce full disclosure." Reeves, 421 A.2d at 50 (citing Tiedman v. American Pigment Corp., 253 F.2d 803, 808 (4th Cir.1958)). Spickler has no reasonable justification for his repeated failures to designate an expert as ordered by the Superior Court. In these circumstances, the Superior Court's failure to impose an appropriate sanction compromised the integrity of the trial procedures. The Superior Court should have sanctioned Spickler for his failure to comply with the court's pretrial orders by excluding Dwayne Fitzgerald's expert testimony.

Additionally, the probative value of Fitzgerald's expert testimony was substantially outweighed by the unfair prejudice that resulted from the surprise admission of his testimony. M.R.Evid. 403. In Pettitt, we acknowledged that "unfair surprise" was not listed as a separate ground for exclusion of evidence under ...