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STATE OF MAINE CUMBERLAND, ss

BUSINESS AND CONSUMER COURT Location: Portland Docket No.: BCD-CV-09-37

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KOZAK & GAYER, P.A., Plaintiff
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PARKVIEW ADVENTIST MEDICAL CENTER, Defendant

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PARKVIEW ADVENTIST MEDICAL CENTER, Counterclaim Plaintiff
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ORDER ON COUNTERCLAIM DEFENDANTS' MOTIONS FOR PARTIAL SUMMARY JUDGMENT

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KOZAK & GAYER, P.A., BENJAMIN P. TOWNSEND, and STEVEN L. JOHNSON, Counterclaim Defendants

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In this action, Counterclaim Defendants Kozak & Gayer, P.A. (Kozak & Gayer), Benjamin P. Townsend and Steven L. Johnson (collectively, the Kozak Parties) have counterclaimed against Parkview Adventist Medial Center (Parkview) for professional negligence (Count 1) and breach of fiduciary duty (Count 2). This matter is now before the court on the Kozak Parties' (1) motion for partial summary judgment on the issues of Parkview's claims for liquidated damages and the abandonment of its damage claims, and (2) motion for

partial summary judgment on Parkview' s claims for damages relating to the potential employment of Dr. Marcia Gillespie. 1 The court has reviewed the parties' memoranda and statements of material fact, and has had the benefit of the parties' oral arguments. Based on the limited scope of the pending

motions, the court is unable to grant summary judgment to the Kozak Parties on either motion. A plaintiff may only recover damages proximately caused by the defendant's breach of duty, that is, those damages that were either a direct result of or a reasonably foreseeable consequence of the alleged breaches. See Johnson v. Carleton, 2001 ME 12, ,-r 12, 765 A.2d 571, 575 (explaining proximate causation in legal malpractice); Niehoff v. Shankman & Assocs. Legal Ctr., P.A., 2000 ME 214, ,-r 8, 763 A.2d 121, 124 ("The same rules of causation generally apply whether the cause of action sounds in contract, negligence, or breach of fiduciary duty."). In colloquy with the court at the motion hearing, the Kozak Parties suggested that, although not expressly articulated in their motion or reply, the issue of proximate cause is raised to some degree by their motions. Parkview, however, countered that neither motion generated that issue and that Parkview did not have the opportunity to formally address the issue of proximate causation in their opposition. Because the court cannot conclude that the issue of proximate causation is generated by either motion, the court cannot determine whether damages would be unrecoverable or would be limited as the Kozak Parties suggest. Further, whether generated or not, the issue of proximate
Kozak & Gayer initiated this litigation on December 4, 2007, in Kennebec County Superior Court by filing a three-count complaint against Parkview for unpaid legal fees in the amount of $114,518.23. On January 20, 2009, Kozak & Gayer filed an amended complaint alleging the same three counts, but seeking damages for unpaid legal fees in the amount of $29,777.68. On February 27, 2009, Parkview answered, counterclaimed, and moved to join Benjamin P. Townsend and Steven L. Johnson as counterclaim defendants, which motion was granted on March 24, 2009. The case was transferred to the Business and Consumer Court on June 24, 2009. On May 26, 2011, the Kozak Parties filed two motions for partial summary judgment, which are the subject of this Order. The court held a hearing on the pending motions
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on October 4, 2011. 2

causation as also the issue of damages are mired in issues of material fact. Fundamentally, the parties do not even agree on the nature of the malpractice litigation. Whereas the Kozak Parties view the malpractice as occurring within litigation, invoking the classic "case within a case" framework, Parkview casts the malpractice as instances of poor contractual drafting and bad legal advice. Parkview' s various claims for damage are not without some support in the

statements of material fact and, based on the summary judgment record and the limited scope of the motions, the court cannot foreclose any measure or type of damages at this juncture. Finally, to the extent that the Kozak Parties aver that an agreement with Dr. Gillespie would have violated federal law and would therefore be unenforceable, the court cannot make such an assumption based on the summary judgment record. Viewing the evidence in the light most favorable to Parkview, see Beaulieu v. The Aube Corp., 2002 ME 79,
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685, issues of material fact remain as to both the terms of any agreement and the nature of the relationship between Parkview and Dr. Gillespie, and summary judgment is not appropriate. Accordingly, pursuant to M.R. Civ. P. 79(a), the Clerk shall incorporate this Order into the docket by reference and the entry is Counterclaim Defendants' Motion For Partial Summary Judgment On Liquidated Damages And Abandonment Of Damage Claims is DENIED; and Counterclaim Defendants' Motion For Partial Summary Judgment With Regards To Counterclaim Plaintiff's Claims For Damages Relating To The Potential Employment of D r . Marcia Gillespie is D:NIED~,;{ /~

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Dated:

October 5, 20 11

"Thomas E. Humphrey Chief Justice, Maine Superior Court

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Entered on the Docket:

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