Desimini v. Durkin et al
Filing
67
ORDER denying 44 Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Felicia M. Desimini
v.
Civil No. 14-cv-112-JD
Opinion No. 2015 DNH 116
John F. Durkin, Jr. and
Wilson, Bush, Durkin & Keefe, PC
O R D E R
Felicia M. Desimini brings claims against her former
attorney, John F. Durkin, Jr., and his law firm, Wilson, Bush,
Durkin & Keefe, PC that arose from Durkin’s representation of
Desimini during her divorce proceedings.
The defendants move
for summary judgment on the ground that Desimini lacks expert
opinion evidence to support the causation element of her legal
malpractice claim.
Desimini objects, contending that her two
experts provide sufficient opinions on causation to support her
legal malpractice claim.1
Standard of Review
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
In addition to legal malpractice, Count I, Desimini alleges
claims of negligent misrepresentation, Count II, and “Superior
Respondeat Breach of Fiduciary Duties Legal Malpractice,” Count
III.
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movant is entitled to judgment as a matter of law.”
Fed. R.
Civ. P. 56(a); Santangelo v. New York Life Ins. Co.,
--- F.3d ---, 2015 WL 1534145, at *2 (1st Cir. Apr. 6, 2015).
“A genuine issue is one that can be resolved in favor of either
party, and a material fact is one which has the potential of
affecting the outcome of the case.”
Jakobiec v. Merrill Lynch
Life Ins. Co., 711 F.3d 217, 223 (1st Cir. 2013) (internal
quotation marks omitted).
In deciding a motion for summary
judgment, the court draws all reasonable factual inferences in
favor of the nonmovant.
Kenney v. Floyd, 700 F.3d 604, 608 (1st
Cir. 2012).
Background
The defendants provide few facts in support of their
motion.
In three paragraphs, they briefly cite Desimini’s
experts’ reports and the deposition testimony of Attorney Kelly
Dowd, one of the experts, to show that Desmini lacks opinions on
damages and causation.
Desimini does not provide a factual
statement but cites to the opinions provided by her experts.
Therefore, the background information is taken from Desimini’s
experts’ reports, which are cited by both parties.
Desimini formerly was married to Ronald Menard.
In
November of 2008, Desimini hired Durkin to represent her in
divorce proceedings.
She sought a divorce based on fault
2
grounds due to Menard’s extra-marital affair.
Durkin, however,
filed the divorce on alternative grounds of fault and no-fault,
irreconcilable differences.
As part of the standing orders
issued in divorce cases under RSA 458:16-b, the court imposed a
restraining order on both parties to prevent them from disposing
of any property.
In 2006, before the divorce proceedings began, Menard had
an IRA account with a balance of approximately $1.8 million.
On
February 3, 2010, Menard represented that the IRA had diminished
to $390,000, and by October 20, 2010, the value was $266,000.
Papers filed in the divorce action indicated that Menard was
making withdrawals from the IRA account of $20,000 each month.
Tax records for 2009 show that $422,000 was withdrawn during
that tax year, and tax returns for 2010 show that $260,000 was
withdrawn during that tax year.
Those withdrawals were made
during the time the divorce was pending and the restraining
order was in effect.
Desimini asked Durkin to obtain information about Menard’s
businesses, the value of the retirement accounts, how
investments were being spent, and what money Menard had given to
his girlfriend.
Although Durkin reassured Desimini that he was
taking care of those matters, he did not pursue them.
3
In May of 2009, Desimini became aware that Menard had
withdrawn large sums of money from the IRA account in 2008 and
told Durkin she was concerned.
Durkin did not move for contempt
of the restraining order or seek an order to require Menard to
pay back the amounts taken.
Durkin also did not obtain
financial information to determine how much had been taken from
the IRA account.
In addition, although Menard had interests in
several business entities, Durkin did not obtain Menard’s
financial records.
Counsel attended mediation in July of 2010 and arrived at a
proposed settlement stipulation.
Durkin did not advise Desimini
about the methods of asset division and valuation.
Despite the
lack of information about Menard’s financial resources, Durkin
advised Desimini to sign a divorce settlement stipulation in
October of 2010, which she did.
Among other things, Durkin did not advise Desimini about
the tax consequences of Menard’s withdrawals from the IRA
accounts.
Soon after she agreed to the settlement stipulation,
the IRS notified Desimini that it intended to levy against her
in the amount of $84,000.
In addition, Menard did not make
payments on the home equity line of credit and that property is
now facing foreclosure.
4
When Desimini contacted Durkin in July of 2011, he advised
her that he had “purged” her file and had destroyed his records
pertaining to her divorce.
He later provided documents that he
obtained from reconstructing the file.
Desimini then reopened
her divorce case, which resulted in an additional property award
in her favor.
With respect to the IRA account withdrawals,
however, the court found that Desimini and her attorney knew
that was happening and did nothing to prevent the withdrawals.
Attorney Jennifer Sargent gave her opinion, as an expert on
behalf of Desimini, that Durkin’s representation during the
divorce proceeding violated four of the New Hampshire Rules of
Professional Conduct.
Attorney Kelly Dowd, also an expert for
Desimini, gave his opinion that Durkin’s conduct violated the
standard of care for divorce practice in New Hampshire.
Specifically, Dowd stated that Durkin should have moved for
contempt to stop Menard’s withdrawals from the IRA account which
probably would have caused the withdrawals to be suspended,
leading to an increased amount in the marital estate at the time
of settlement.
Dowd also faulted Durkin for failing to have
Menard’s obligations secured by assets, which would have
decreased the risk to Desimini that Menard would not pay.
also stated that Durkin’s failure to act resulted in an
inequitable settlement which prolonged the litigation.
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Dowd
Discussion
Although the defendants’ motion is titled “Motion for
Summary Judgment for Lack of Competent Expert Testimony
Regarding Causation,” the motion focuses on the calculation of
damages.
The defendants move for summary judgment on the
malpractice claim, Count I, but do not address Desimini’s claims
for negligent misrepresentation, Count II, and “superior
respondeat breach of fiduciary duties legal malpractice,” Count
III.
Desimini objects to the motion, arguing that Sargent and
Dowd provide sufficient opinion evidence to support her legal
malpractice claim.
A.
Causation
Legal malpractice is negligence by an attorney in
representing a client.
(2014).
Yager v. Clauson, 166 N.H. 570, 573
The elements of a legal malpractice claim are “(1) that
an attorney-client relationship existed, which placed a duty
upon the attorney to exercise reasonable professional care,
skill and knowledge in providing legal services to that client;
(2) a breach of that duty; and (3) resultant harm legally caused
by that breach.”
Estate of Sicotte v. Lubin & Meyer, P.C., 157
N.H. 670, 674 (2008).
In most cases, expert opinion testimony
is necessary to inform the jury of the standard of care, to show
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a breach of the standard of care, and to establish that the
breach caused the plaintiff harm.
Yager, 166 N.H. at 573.
Proof of causation requires evidence to show a probable
link between the negligence and the injury.
160 N.H. 118, 124 (2010).
Beckles v. Madden,
The defendant’s negligent conduct
need not be the sole cause of the injury, however, but it must
have caused or contributed to cause the injury.
Id.
“This
standard is satisfied if the evidence shows with reasonable
probability, not mathematical certainty, that but for the
defendant’s negligence, the harm would not have occurred.”
Id.
In the context of legal malpractice, a plaintiff must show
with reasonable probability that the outcome would have been
better but for the attorney’s negligent representation.
Pike v.
Mullikin, 158 N.H. 267, 272 (2009); Sicotte, 157 N.H. at 674-75.
That is, “the trier of fact must be able to determine what
result would have occurred if the attorney had not been
negligent.”
Carbone v. Tierney, 151 N.H. 521, 528 (2004).
Dowd provided his opinion that if Durkin had filed a
contempt motion to stop Menard’s withdrawals from the IRA
account, “it is probable that the withdrawals would have been
suspended, at least on a temporary basis, and/or substantially
reduced, increasing the total amount of the marital estate at
the time of the settlement or final hearing.”
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He also stated
that an order reducing or suspending the withdrawals would have
put pressure on Menard “to make favorable concessions on the
property settlement in order to use assets freely in the
future.”
Dowd further stated that Durkin should have
investigated Menard’s business interests so that he could
challenge the withdrawals from the IRA account if the transfers
to his businesses were fraudulent.
As to the tax consequences
of the IRA account withdrawals for purposes of the settlement,
Dowd acknowledged that Desimini successfully negotiated with the
IRS but gave his opinion that Durkin’s actions created problems
in his relationship with Desimini.
Dowd explained that “[h]ad Durkin filed a motion for
contempt to prevent the withdrawals from the IRA, it is probable
that the final property settlement made on behalf of Ms.
Desimini would have been secured by hard assets, rather than
what appear to be unsecured promises to pay.”
The value of the
security, Dowd continued, is that even if the settlement were
not any larger, Desimini would have assets to back up Menard’s
obligations.
That security was important because of Menard’s
health and financial problems.
As such, Dowd provides opinions that sufficiently link
Durkin’s alleged breaches of his duties to harm experienced by
Desimini to survive summary judgment.
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B.
Damages
The defendants assert that neither of Desimini’s experts
provides opinions on monetary loss, and therefore Desimini
cannot prove her legal malpractice claim.
“The law does not
require that damages be calculated with mathematical certainty;
the method used need not be more than an approximation.”
Victor
Virgin Constr. Corp. v. N.H. Dep’t of Trans., 165 N.H. 242, 245
(2013).
In addition, the issue of proof of damages was
addressed in the court’s order issued on May 12, 2015, document
no. 61.
Because of the brevity and conclusory nature of the
defendant’s motion, it is not clear what proof of damages they
were expecting and have not received.2
In addition, Dowd’s
report includes amounts that Menard withdrew from the IRA
account and the resulting lower balances.
The defendants have
not shown that Desimini will be unable to prove her damages for
purposes of her legal malpractice claim.
2As
such, the defendants have not sufficiently developed their
argument about damages to allow review. See Coons v. Indus.
Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010); Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999)
(“district court is free to disregard arguments that are not
adequately developed”).
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Conclusion
For the foregoing reasons, the defendants’ motion for
summary judgment (document no. 44) is denied.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
June 8, 2015
cc:
Felicia M. Desimini, Esq.
Janet Elizabeth Dutcher, Esq.
Jeffrey H. Karlin, Esq.
Marshal V. Kazarosian, Esq.
Joseph Gardner Mattson, Esq.
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