Kurtz & Perry, P.A. v. Emerson
2010 ME 107
| Me. | 2010Background
- Emerson retained Kurtz & Perry, P.A. (K & P) for a 2001 divorce; the divorce was mediated and a 2004 settlement stated parties would be responsible for their own fees.
- In May 2005, K & P sued Emerson for $34,608 in unpaid fees; Emerson answered and asserted malpractice and related counterclaims/third-party claims.
- Emerson initiated a Rule 9 fee arbitration; she alleged no written fee agreement and that her ex-husband would pay fees under the settlement.
- The Fee Arbitration Panel found Emerson owed $34,358.37, despite no written fee agreement, and held for K & P on all material fee-issue findings.
- A January 2007 court judgment entered on the Panel’s determination; Emerson later failed to designate experts for malpractice claims.
- In 2009 the trial court granted summary judgment for K & P on malpractice claims relying on res judicata/collateral estoppel from the fee-arbitration determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fee Arbitration Panel decision has collateral estoppel effect. | Emerson argues no de novo review means no adjudication. | Panel proceedings had essential adjudication elements; collateral estoppel applies. | Yes; collateral estoppel applies because essential adjudication elements were present. |
| Whether collateral estoppel bars relitigating Emerson’s malpractice claims based on panel findings about fee obligation. | Emerson claims issues were not necessary to the fee dispute or were not properly decided. | Panel necessarily decided fee-amount/obligation issues; those issues are barred. | Barred to the extent tied to fee-obligation issues; other theories barred due to lack of expert. |
| Whether Emerson’s lack of expert designation defeats her malpractice claim. | Emerson asserts malpractices without expert support. | Expert testimony is required to establish standard of care in malpractice; unless obvious. | Emerson’s theory lacked expert proof; claim dismissed. |
| Whether the malpractice theory based on inadequate advocacy is barred by prior adjudication or procedural rules. | Theory sought relitigation of advocacy adequacy. | Barred by collateral estoppel and by lack of expert designation. | Barred; collateral estoppel applies and expert requirement remains. |
Key Cases Cited
- Beal v. Allstate Ins. Co., 2010 ME 20, 989 A.2d 733 (Me. 2010) (arbitration awards can have collateral estoppel effect when adjudication elements exist)
- Efstathiou v. Efstathiou, 2009 ME 107, 982 A.2d 339 (Me. 2009) (collateral estoppel applies to issues necessarily decided)
- Macomber v. MacQuinn-Tweedie, 2003 ME 121, 834 A.2d 131 (Me. 2003) (defines collateral estoppel and fair opportunity to litigate)
- State v. Thompson, 2008 ME 166, 958 A.2d 887 (Me. 2008) (administrative decisions with appeal opportunities can have res judicata effect when proper review exists)
- Town of Boothbay v. Jenness, 2003 ME 50, 822 A.2d 1169 (Me. 2003) (res judicata implications of administrative outcomes)