Champagne v. Zerillo

HOPE CHAMPAGNE, Plaintiff, v. TIM ZERILLO, ESQ., et al., Defendants

SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-18-494

Superior Court of Maine

Entered: January 8, 2021

January 7, 2021

STATE OF MAINE

CUMBERLAND, ss

ORDER

Before the court are three motions filed by defendants Tim Zerillo, Zerillo Law LLC, and John Burke (the "Zerillo defendants"): (1) a motion for summary judgment, (2) a motion to exclude plaintiff's expert, and (3) a motion for Rule 11 sanctions.

This is a legal malpractice action brought by Hope Champagne against the Zerillo defendants. Champagne was represented by the Zerillo defendants in connection with a lawsuit that Champagne brought against the Deliverance Center Church, against Steven Reynolds, the pastor of that church,¹ against certain entities affiliated with the Deliverance Center Church, and against an individual named Charles Knox. Champagne v. Knox, et al., Docket No. CV-13-128 (Superior Court Cumberland County).

The gravamen of Champagne's complaint in CV-13-128 was that she was brought up within the Deliverance Church congregation and attended its church school. CV-13-128 Complaint ¶¶ 11-15 (A copy of the complaint is annexed to Champagne's Opposing Statement of Material Facts and is relied on by both parties). During that time she alleged that she was sexually molested by Charles Knox, beginning in 2003, when she was 13 years old, through 2007. Id. ¶¶ 25-26, 58, 66.

The CV-13-128 complaint alleged that Knox was a member of the Deliverance Church who performed various activities for the Church and whose contact with Champagne arose from those activities. Id. ¶¶ 20, 24. It further alleged that Champagne had reported Knox's abuse to Pastor Reynolds when the abuse began, that he instructed her not to tell anyone, and the Church and Pastor Reynolds took no action to protect her from Knox's continuing abuse even though the nature of her relationship to the Church meant that they had a fiduciary duty to do so. Id. ¶¶ 28, 35, 45-51, 64-65, 96-101, 117-21, 179-83.

Champagne sought compensatory and punitive damages against the church and its affiliated entities and against Pastor Reynolds for negligent supervision and breach of fiduciary duty. She separately sought compensatory and punitive damages against Knox for battery, assault, invasion of privacy, and intentional infliction of emotional distress.

Represented by Zerillo and Burke, Champagne settled her claims against the Deliverance Church and Pastor Reynolds for $63,000 and a letter of apology after a judicial settlement conference held on October 31, 2013. Zerillo agreed to reduce the attorney's fee to which he would otherwise have been entitled so that Champagne would receive a larger net recovery.

Thereafter Champagne proceeded to trial on her claims against Charles Knox, who was not represented by counsel. After a bench trial in the spring of 2014, she obtained a judgment for $350,000 in compensatory damages and $150,000 in punitive damages against Charles Knox. Champagne v. Knox, et al., Docket No, 13-128 (Superior Court Cumberland County, judgment dated July 17, 2014) (Mills, J.).

Champagne's claim in this action is that the Zerillo defendants committed malpractice in connection with the $63,000 settlement she obtained against the church and the pastor. She specifically alleges she settled against the church and the pastor because Zerillo and Burke negligently advised her that she was unlikely to recover any substantial amount beyond the $50,000 limit in the Church's insurance coverage for sexual molestation claims.

Because the motion for summary judgment largely resolves the case, the court will address that motion first.

Summary Judgment Standard

Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Mahar v. StoneWood Transport, 2003 ME 63 ¶ 8, 823 A.2d 540. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Kenny v. Department of Human Services, 1999 ME 158 ¶ 3, 740 A.2d 560.

Summary judgment is governed by M.R.Civ.P 56, and in this case the Zerillo defendants contend that Champagne has egregiously violated certain provisions of Rule 56.

Deficiencies in Plaintiff's Rule 56 Submissions

The court agrees that in many cases Champagne's submissions violate the letter and spirit of Rule 56. In certain cases, instead of denying or qualifying the assertions in the Zerillo defendants' Rule 56(h)(1) statement in a short and concise factual statement with appropriate citations to the record, Champagne has offered lengthy and argumentative responses that are not infrequently unsupported by any citations to the record. See, e.g., Champagne's Opposing Statement of Material Facts dated January 20, 2020 ¶¶ 4, 9 (lengthy argument); ¶ 12 (denial without supporting citations); ¶¶ 18-19, 22, 24, 29-30 (qualifications without supporting citations).

Portions of Champagne's Statement of Additional Material Facts (SAMF) also consist largely of lengthy arguments rather than short and concise statements of the specific factual assertions that Champagne contends raise disputed issues for trial. See Champagne SAMF ¶ 1(consisting of almost two pages), ¶ 10 (paragraph consisting of almost three pages quoting portions of the decision rendered by Justice Mills after the bench trial against Charles Knox).

The Zerillo defendants justifiably also object to the 15-page "factual background" portion of Champagne's memorandum in opposition to summary judgment, noting that it is untethered to any citations to the summary judgment record and recites some alleged facts and details that are nowhere contained in any of the Rule 56(h) statements.

Finally, Champagne submitted a purported Rule 56(i) response to the Zerillo defendants' Reply Statement of Material Facts that does not consist of a brief statement of why factual assertions in her SAMF should be considered despite defendants' objections - which is what is permitted by Rule 56(i). Champagne's submission instead consists of 11 pages that can only be described as an attempted closing argument and improper sur-reply without any citations to the summary judgment record. The court disregards that submission in its entirety.

While the summary judgment rule has been criticized as overly technical, its purpose is to allow the court to target whether there are disputed facts for trial, as opposed to wallowing in lengthy legal arguments and attempting to discern whether they are factually supported. Champagne's Rule 56 submissions essentially subvert that purpose.

The Zerillo defendants argue that Champagne's Rule 56 response is so deficient that summary judgment should be granted against Champagne under the Law Court's decision in First Tracks Investments LLC v. Murray, Plumb & Murray, 2015 ME 104 ¶¶ 2-3, 121 A.3d 1279. Champagne's Rule 56 submissions resemble the filings criticized in First Tracks in that, whether intentionally or not, they have the effect of obfuscating the issues rather than allowing the court to focus on whether there are disputed issues for trial. Whether they are so deficient to justify summary judgment is a close question.

Ultimately, despite the many inadequacies in Champagne's summary judgment submissions, the court is able to discern the substance of Champagne's claims against the Zerillo defendants and to conclude that the Zerillo defendants are entitled to summary judgment because Champagne has not raised a disputed issue for trial on the issue of causation. As a result, it does not need to determine whether summary judgment should also be granted against plaintiff based on First Tracks.

Absence of Evidence that Plaintiff Would Have Obtained More Favorable Result

In legal malpractice cases, the Law Court has repeatedly ruled that a fundamental requirement of the plaintiff's claim is proof of causation - that the lawyer's alleged failure to meet the standard of care caused actual detriment to the plaintiff, not just speculation that in the absence of the lawyer's negligence there might have been a more favorable result. The was re-emphasized most recently in Reppucci v. Nadeau, 2020 ME 114 ¶ 7, 238 A.3d 994:

[A] plaintiff must demonstrate that he or she would have achieved a more favorable result but for the defendant's alleged legal malpractice. 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 id. ¶ 11. Accord, Brooks v. Lemieux, 2017 ME 55 ¶¶ 14, 19, 157 A.3d 798; Allen v. McCann, 2015 ME 84 ¶ 9, 11, 120 A.3d 90; Corey v. Norman Hanson & DeTroy, 1999 ME 196 ¶ 13, 742 A.2d 933.

The basis of the Zerillo defendants' motion for summary judgment is that Champagne has failed to offer sufficient evidence to demonstrate that there is a disputed issue for trial on whether she would have achieved a more favorable result but for the alleged negligence of Zerillo and Burke in connection with the settlement.

As far as the court can tell,² Champagne's expert witness, Attorney Evan Smith, has offered essentially three criticisms of Zerillo and Burke, all of which focus on the $50,000 limit in the church's insurance policy on sexual molestation claims. The first is that Zerillo and Burke should have pursued the possibility that there were other applicable insurance policies. The Zerillo defendants deny that they were negligent...