UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Felicia M. Desimini

v. Civil No. 14-cv-112-JD Opinion No.

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

1 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. 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 ---,

(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.,

(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,

(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. Dowd

also stated that Durkin’s failure to act resulted in an

inequitable settlement which prolonged the litigation.

5 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. Yager v. Clauson,

(2014). 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.,

(2008). In most cases, expert opinion testimony

is necessary to inform the jury of the standard of care, to show

6 a breach of the standard of care, and to establish that the

breach caused the plaintiff harm. Yager,

.

Proof of causation requires evidence to show a probable

link between the negligence and the injury. Beckles v. Madden,

(2010). 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.

“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.”

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,

(2009); Sicotte,

.

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,

(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.” He also stated

7 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.

8 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.,

(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.,

(1st Cir. 2010); Higgins v. New Balance Athletic Shoe, Inc.,

(1st Cir. 1999) (“district court is free to disregard arguments that are not adequately developed”).

9 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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