Wendy Reppucci v. James P. Nadeau

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 114
Docket: Yor-19-40
Argued: September 26, 2019
Decided: September 22, 2020

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

WENDY REPPUCCI

v.

JAMES P. NADEAU et al.

MEAD, 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

*
Although not available at oral argument, Justice Gorman participated in the development of this
opinion. See M.R. App. P. 12(a) (“A qualified justice may participate in a decision even though not
present at oral argument.”).

**
Justice Hjelm sat at oral argument and participated in the initial conference while he was an
Associate Justice and, on order of the Senior Associate Justice, was authorized to continue his
participation in his capacity as an Active Retired Justice. Chief Justice Saufley sat at oral argument
and participated in the initial conference but resigned before this opinion was certified.
Justice Alexander sat at oral argument and participated in the initial conference but retired before
this opinion was certified.
2

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 cases2 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.

I. BACKGROUND

[¶3] Attorney James Nadeau represented Wendy Reppucci in her

2008 divorce from Richard Reppucci. The divorce judgment, entered in the

District Court (York, Janelle, 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;

1Nadeau makes several other assertions of error that we do not find persuasive and do not
discuss further.

See MSR Recycling, LLC v. Weeks & Hutchins, LLC, 2019 ME 125, ¶ 6, 214 A.3d 1; Brooks v. Lemieux,
2

2017 ME 55, ¶ 12 & n.5, 157 A.3d 798.
3

• 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

3Nadeau’s motion for judgment as a matter of law on the count alleging breach of fiduciary duty
was granted at the end of the trial and is not at issue in this appeal.
4

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).
5

II. DISCUSSION

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. Niehoff was 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,
6

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,

214 A.3d 1.

[¶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
7

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 favorable

result for the plaintiff. See Johnson v. York Hosp., 2019 ME 176, ¶ 29,

222 A.3d 624 (stating that, on a defendant’s motion for summary judgment, the

plaintiff need only meet a burden of production for factual issues). Niehoff does

not modify the nature of the plaintiff’s ultimate burden of persuasion at trial to

prove proximate cause, which, as we stated, remains the familiar standard that,

absent the attorney’s alleged negligence, the plaintiff would have enjoyed a

more favorable outcome in the underlying action. 2000 ME 214, ¶ 9,

763 A.2d 121.

[¶11] Thus, Niehoff presents no more than a case-specific application of

the proximate cause test that we have long employed. In other words, at trial,

there are not two different legal malpractice tests requiring courts to elect one
8

or the other, and a plaintiff does not enjoy a lesser burden of proof in a “failure

to plead” case. The single test is the same as it was when we decided Niehoff:

“In legal malpractice cases, the plaintiff must show (1) a breach by the

defendant attorney of the duty owed to the plaintiff to conform to a certain

standard of conduct; and (2) that the breach of the duty proximately caused an

injury or loss to the plaintiff.” Id. ¶ 7.

[¶12] In the usual case where an attorney’s negligence involves “advice

or tactics . . . preced[ing] a final result on the merits of an underlying action,” “a

more favorable result” is measured against the result that was actually

obtained, be it a judgment for the opposing party in the underlying case or—as

here—a judgment in a party’s favor that the party views as insufficient. Id. ¶ 9.

In other words, at trial the plaintiff must prove by a preponderance of the

evidence that the attorney’s malpractice resulted in the fact-finder basing a

decision on a poorly presented case as a result of deficient advice or trial tactics,

depriving the plaintiff of “a more favorable result.” Id.

[¶13] When a particular case involves not a poorly presented claim but

rather an attorney’s complete failure to put a claim before the fact-finder for

decision, as occurred in Niehoff and MSR Recycling,4 the proximate cause

4In Niehoff, we considered a law firm’s failure to bring a discrete federal employment law claim
on behalf of its client as part of a tort suit against the client’s employer; the client later sued the firm
9

standard remains the same—the plaintiff must still prove “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. What changes is the

baseline from which “a more favorable result” is measured. Whereas a poorly

presented case decided by a fact-finder yields a certain result, which then forms

the starting point for the proximate cause analysis, a “failure to plead” case

yields no result at all because the claim was never put before the fact-finder for

decision in the first instance. In the latter circumstance, in order to satisfy the

proximate cause standard, the plaintiff must prove that, but for the attorney’s

negligence, he or she would have achieved any favorable result, because any

positive result is “more favorable” than the absence of a result.

[¶14] Whether the baseline is a judgment resulting from an attorney’s

negligent performance in presenting a case or the absence of a judgment

resulting from the attorney’s failure to present a claim at all, a legal malpractice

for malpractice. 2000 ME 214, ¶¶ 3-5, 763 A.2d 121. We noted that the client’s “opportunity to get
[the federal employment law claim] before the factfinder [was] lost.” Id. ¶ 9.

In MSR Recycling, the plaintiff’s attorney failed to file an appellate brief in the Superior Court in a
M.R. Civ. P. 80B appeal, resulting in the appeal being dismissed. 2019 ME 125, ¶¶ 1, 3, 6-7,
214 A.3d 1. We clarify our statement in MSR Recycling that a “failure to plead” situation arises “[i]n
a legal malpractice action based on an attorney’s failure to timely plead or file a required document
with the court,” id. ¶ 6 (emphasis added), which could, read in isolation, suggest that the failure to file
any document required by the court or by rule would constitute a “failure to plead.” Properly read
in context, a “required document” is one that is necessary to bring a claim before a court for
adjudication and without which the claim is never heard.
10

plaintiff must establish that he or she was deprived of a “more favorable result”

in the underlying case by proving what its outcome would have been had the

attorney not been negligent. In Brooks, we cited an opinion of the Connecticut

Supreme Court explaining that

the plaintiff typically proves that the attorney’s professional
negligence caused injury to the plaintiff by presenting evidence of
what would have happened in the underlying action had the
attorney not been negligent. This traditional method of presenting
the merits of the underlying action is often called the “case-within-
a-case.”

2017 ME 55, ¶ 18, 157 A.3d 798 (quoting Bozelko v. Papastavros, 147 A.3d 1023,

1029 (Conn. 2016) (alterations and quotation marks omitted)); see Steeves v.

Bernstein, Shur, Sawyer & Nelson, P.C., 1998 ME 210, ¶ 15, 718 A.2d 186 (“In an

action following an attorney error during trial, the court addressing the

causation issue in the subsequent malpractice action merely retries, or tries for

the first time, the client’s cause of action which the client asserts was lost or

compromised by the attorney’s negligence.” (quotation marks omitted)).

[¶15] In this case there was a clear baseline from which a “more

favorable result” could be measured—the awards made in the divorce

judgment. Niehoff, 2000 ME 214, ¶ 9, 763 A.2d 121. Whether Reppucci was

deprived of a more favorable result because of Nadeau’s failure to present

certain issues or because of Nadeau’s advice on, and presentation of, certain
11

other issues is determined against that same baseline. With that principle in

mind, we turn to an examination of the court’s jury instructions.

B. Jury Instructions

[¶16] The trial court applied the Niehoff formulation to five of Reppucci’s

economic claims5 and instructed the jury accordingly:

With respect to claims that the plaintiff has made alleging that the
defendant negligently failed to assert or argue a claim in the
underlying divorce . . . [she] must show that . . . the attorney’s
negligence caused [her] to lose an opportunity to achieve a result
favorable to [her] which the law allows and the facts in the divorce
case would have supported.

[¶17] The jury was further instructed to apply that proximate cause

standard and report its decision on a verdict form, which asked, with respect to

those claims, “[D]id the Defendant’s breach of the standard of care cause the

plaintiff to lose an opportunity to achieve a result, favorable to plaintiff, which

(1) the law allows, and (2) the evidence supports in the divorce action?” As to

four of those claims, the jury answered in the affirmative and awarded

Reppucci damages totaling $80,522.

[¶18] Concerning Reppucci’s two remaining claims,6 the jury was

instructed, in part,

The court applied the Niehoff language to Reppucci’s claims concerning spousal support,
5

attorney fees, a tax lien debt allocation, the marital real estate, and the SBP.
12

[T]he plaintiff must prove . . . by a preponderance of the evidence[]
that the defendant committed professional negligence in his
representation of the plaintiff, that the defendant’s professional
negligence was a substantial factor in causing an unfavorable result
or harm, and the defendant’s professional negligence was a cause
of the loss or the damages that have been claimed by the plaintiff.[7]

The court restated that instruction when it explained the verdict form.

[¶19] We first note that this is not a “failure to plead” case of the type

that gave rise to our decision in Niehoff. Nadeau filed a divorce complaint on

Reppucci’s behalf, took the case to trial, and obtained a judgment in Reppucci’s

favor on the two issues that she testified were most important to her—primary

residence of the children and her right to stay in the marital home. Reppucci

contends that with appropriate legal advice she would have also achieved a

more favorable result on other financial issues that are the focus of this appeal.

Because all economic issues were placed before the court by the divorce

complaint and various pretrial filings and orders,8 Reppucci challenges

6 The court did not apply the Niehoff language to those two claims, which concerned military

retirement benefits and the TSP, because Nadeau presented and pursued those claims in the divorce
action, albeit, as the jury concluded, negligently.

7 See Alexander, Maine Jury Instruction Manual § 7-77 at 7-108 (2018-2019 ed. 2018), which sets

out a choice between the “substantial factor” language used by the court and an alternative: “But for
the defendant’s professional negligence . . . the plaintiff[] would have achieved a more favorable result
. . . .” At sidebar, the court explained that because there was evidence that Richard Reppucci’s actions
had been a factor in Wendy Reppucci’s alleged loss with respect to the TSP, “had I not used the
substantial factor [instruction], I would not have given the instructions on intervening events . . . that
the defendant had requested.”

8 See 19-A M.R.S. §§ 951-A, 953 (2020).
13

Nadeau’s inadequate performance in failing to argue for awards that were

within the court’s discretion to make, not a complete failure to submit

paperwork to put the issues in the divorce case before the court for decision.

An attorney’s failure to pursue or advocate in support of a claim has the same

effect, however, as a claim that is not raised in the first place, which was the

situation addressed in Niehoff, because in each of those instances, when the

silenced claim is legally viable and has support in the underlying record, the

former client is deprived of the opportunity to obtain a favorable outcome on

that claim.

[¶20] That said, our analysis of the court’s proximate cause instructions,

which were not uniform as to all of Reppucci’s claims, turns on whether they

“fairly and accurately informed the jury of all necessary elements of the

governing law.” State v. McLaughlin, 2020 ME 82, ¶ 25 n.10, --- A.3d ---

(quotation marks omitted). We conclude that in this case they did.

[¶21] For each of Reppucci’s claims, the jury was correctly told that if it

first found that Nadeau’s performance had been deficient, it must then decide

whether Reppucci had proved that she would have obtained a more favorable

judgment if Nadeau had performed competently. See Niehoff, 2000 ME 214, ¶ 9,

763 A.2d 121 (“We have indicated that to prevail in a legal malpractice action,
14

a plaintiff must demonstrate that he or she would have achieved a more

favorable result but for the defendant’s alleged legal malpractice.”). As we have

discussed, that has been, and remains, the test for proving a claim of legal

malpractice.

[¶22] The court’s different formulations of that test—“[Nadeau’s]

negligence caused [Reppucci] to lose an opportunity to achieve a result

favorable to [her]” and “[Nadeau’s] professional negligence was a substantial

factor in causing an unfavorable result or harm [to Reppucci]”—represent two

ways of saying that Reppucci was required to prove that she was deprived of

what would have otherwise been awarded to her in the divorce, and neither

constitutes error here. In proving the “case-within-a-case,” Reppucci was, as

the court instructed, required to establish for each of her claims that competent

representation would have led to a “more favorable result,” id., measured from

the baseline of the judgment that resulted from the divorce trial. Because the

jury was correctly instructed concerning Reppucci’s burden to prove proximate

cause, we affirm the judgment.

The entry is:
Judgment affirmed.
15

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

York County Superior Court docket number CV-2014-182
FOR CLERK REFERENCE ONLY