MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2016	ME	144

Docket: Pen-15-305

Argued: April	5,	2016

Decided: September	20,	2016

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

FRANK	PAWLENDZIO	et	al.

v.

JON	HADDOW

JABAR, J.

[¶1]	 	 Frank	 and	 Beverly	 Pawlendzio	 appeal	 from	 an	 order	 of	 the	

Superior	Court	(Penobscot	County,	Anderson,	J.)	granting	summary	judgment	

in	 favor	 of	 Jon	 Haddow	 on	 the	 Pawlendzios’ claim	 alleging	 attorney	

malpractice.	 Because	the	record	does	not	present	a	legally	cognizable	claim	of	

legal	malpractice,	we	affirm.

I.		FACTS

[¶2] For	 fifteen	 years, Frank	 Pawlendzio	 owned	 and	 operated	 Oak	

Ridge	Builders,	Inc.,	a	home	construction	company.		Oak	Ridge	was	in	business	

until	2007, when	it	filed	for	bankruptcy.		Jon	Haddow	provided	legal	advice	in	

connection	 with	 the	 bankruptcy	 proceedings.	 	 There	 is	 no	 suggestion	 that	
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Haddow	 was	 negligent	 in	 providing	 advice	 regarding	 the	 corporate	

bankruptcy	in	2007.		

[¶3]	 	 While	 the	 corporate	 bankruptcy	 was	 pending,	 Frank	 decided	 to	

build	a	house	in	his	individual	capacity	on	a	parcel	of	property	that	he	owned

with	 the	 intent	 to	 sell	 the	 house (“spec	 house”) upon	 completion. Haddow	

again	provided	Frank	with	legal	advice	concerning	the	venture.	 To	finance	the	

project,	Frank	obtained	funding	from	three	people:	$110,000	from	a	longtime	

friend,	Howard	Martin;	$57,500	 from	his	elderly	 father-in-law,	Edward	King,	

whose	accounts	were	controlled	by	Frank’s	wife, Beverly;	and	$4,000	from	his	

brother,	Stan	Pawlendzio.		At	 the	 time	 they	were	made,	all	 three	loans	were	

unsecured.		

[¶4]	 When	 the	 house	 was	 substantially	 completed but	 before	 it	 was	

sold,	Frank	learned	that	he	continued	to	owe	a	significant	amount	of	money	to	

Oak Ridge’s creditors	because	he	had	personally	guaranteed	some	debts	 that	

were	not	subject	to	discharge	in	the	corporate	bankruptcy.		

[¶5]	 Frank	consulted	Haddow	about	filing	for	personal	bankruptcy,	and	

because	 he	 understood	 from conversations	 with Haddow	 that	 he	 could	

protect	 his	 unsecured	 creditors with	 mortgages,	 Frank	 asked	 Haddow	 to	

prepare	after-the-fact	mortgages for	 the	 three	personal	lenders.	 Pursuant	 to	
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these discussions,	 Haddow	 prepared	 the	 mortgages.	 	 The	 Pawlendzios	

subsequently	filed	for	bankruptcy	in	December 2008,	and	sold	the	spec	house	

shortly	 thereafter.	 	 Haddow	 represented	 the	 Pawlendzios	 in	 the	 personal	

bankruptcy	proceeding.		

[¶6]	 	 The	 after-the-fact	 mortgages did	 not,	 however,	 protect	 the	

personal	 lenders’ interest	 as	 contemplated. At	 the	 conclusion	 of	 the	

bankruptcy	proceedings, the	bankruptcy	estate	distributed	$500	each	to	King	

and	 Frank,	 and	 $105,000	 to	 Martin.	 	Although	 the	 bankruptcy	 estate	 repaid	

the	 majority	 of	 the	 funds	 Martin	 loaned	 to	 Frank,	 the	 Pawlendzios	 made	

monthly	 payments	 to	 him	to	 make	 up	the	 difference	 because	 they	 believed	

that	he	had	a	 viable	claim	against	 them	and	because	 they	wanted	 to	 salvage	

their friendship with	Martin.	

[¶7]		Following the	Pawlendzios’ personal	bankruptcy	proceedings,	on	

July	 11,	 2012,	 they	 filed	 a	 complaint	 against	 Haddow	 in	 the	 Superior	 Court	

asserting	claims	of	legal	malpractice	and	seeking	damages	 for	economic	loss	

and	extreme	emotional	distress.		In	 their	complaint,	 the	Pawlendzios	alleged

that	 after	 learning	 of	 his	 substantial	 personal	 debt	 obligations,	 Frank	

requested	that	Haddow	protect	the	investments of	the	three	personal	lenders

and	 that	Haddow	was	negligent	in	 failing	 to	do	so	by	means	of	 the	after-the-
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fact	 mortgages	 or	 otherwise.	 	 As	 damages,	 the	 Pawlendzios	 asserted that,	

although	 their	 debts	 were	 discharged	 in	 bankruptcy,	 they	 had	 a	 moral	

obligation	 to	 repay	 the	 remainder	 of	the	debts owed to	 their	 friend,	Martin,	

and	 the	accounts	 controlled	 by	Beverly.	 	The	Pawlendzios	also	asserted that	

Haddow’s	 alleged	 failure	 to	 protect	 the	interests	 of	 the	 originally	 unsecured	

creditors	has	caused	them	emotional	distress.		

[¶8]	 	 Haddow	 subsequently	 moved	 for	 summary	 judgment,	 and, on	

May 26,	2015,	 the	court	entered	an	order	granting	summary	judgment	in	his	

favor.		The	Pawlendzios	timely	appealed.

II.	 DISCUSSION

[¶9]		We	review	a	grant	of	summary	judgment	de	novo,	considering	the	

evidence	in	the	light	“most	favorable	to	the	nonprevailing	party	to	determine	

whether	 the	parties’ statements	 of	material	 facts	and	 the	 record	evidence	 to	

which	 the	 statements	 refer	 demonstrate	 that	 there	 is	 no	 genuine	 issue	 of	

material	fact	and	the	moving	party	is	entitled	to	judgment	as	a	matter	of	law.”

Rainey	v.	Langen, 2010	ME	56,	¶	23,	998	A.2d	342 (quoting	Beal	v.	Allstate	Ins.	

Co., 2010	ME	20,	¶	11,	989	A.2d	733).

[¶10]		To	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	
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standard	of	conduct;	and	(2)	that	the	breach	of	that	duty	proximately	caused	

an	 injury	 or	 loss	 to	 the	 plaintiff.	 See Steeves	 v.	 Bernstein,	 Shur,	 Sawyer	 &	

Nelson,	P.C.,	1998	ME	210,	¶	12,	718	A.2d	186.

[¶11]	 	 Professional	 negligence,	 in	 the	 context	 of	 a	 legal	 malpractice	

action,	is	the	failure	to	use	such	skill,	prudence	and diligence	as	is	reasonable	

according	 to	 the	 standards	 of	 ordinarily	 competent	 lawyers	 performing	

similar	 services	 under	like	 conditions.	 	 Sohn	 v.	 Bernstein,	 279	A.2d	 529,	532	

(Me.	1971).

[¶12]	 	 To	 prove	 professional	 negligence,	 the	 plaintiff	 must	 present	

expert	 testimony	“to	establish	 the	appropriate	standard	of	care	and	whether	

an	 attorney	 breached	 that	 standard	 of	 care,	 except	 when	 the	 breach	 or	lack	

thereof	is	so	obvious	that	it	may	be	determined	by	a	court	as	a	matter	of	law	

or	is	within	the	ordinary	knowledge	of	laymen.”	 Kurtz	&	Perry,	P.A. v.	Emerson,	

2010	ME	107,	¶	26,	8	A.3d	677 (citing Pitt	v.	Frawley,	1999	ME	5,	¶	9,	722	A.2d	

358).

[¶13]		Here,	the	Pawlendzios	allege	that	Haddow	breached	a	duty	owed	

to	 them	 when	 he	 failed	 to	 protect	 the	 loans	 made	 by	 the three	 personal	

lenders in	connection	with	 the	building	of	 the	spec	house.	 The	Pawlendzios	

failed,	 however,	 to	 present	 any	 expert’s	 opinion	 establishing	 either	 the	
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standard	 of	 care	 of	 an “ordinarily	 competent	 lawyer”	 or	 how	 Haddow’s	

conduct	 deviated	 from	 that	 standard.	 Although the	 Pawlendzios	 complain	

that	Haddow	 should	 have	 done	more	 to	 protect	 the	 three	 creditors,	 they	 do	

not	 proffer	 any	 expert	 testimony	 within	 their	 statement	 of	material	 facts to	

establish	 what	 Haddow,	 in	 the	 exercise	 of	 his	 duty,	 should have	 done	 to	

protect	the	loans	made	to	Frank	by	his	family	and	friends.		

[¶14]	 	 In	 reviewing	 a	 motion	 for	 summary	 judgment,	 our	 inquiry	 is	

limited	 to	 the	 statement	 of	 material	 facts and	 the	 references	 to	 the	 record	

contained	therein.	 Although	we will	view	the	facts	in	the	light	most	favorable	

to	 the	Pawlendzios,	to	defeat	a	defendant’s	motion	 for	summary	judgment, a	

plaintiff	must	present	evidence	 sufficient	 to	generate	a	 prima	 facie	 case	 of a	

legally	 cognizable	 claim.	 Lougee	 Conservancy	 v.	 CitiMortgage,	 Inc., 2012 ME	

103	¶ 12,	48	A.3d	774.	 Thus,	it	is	not	enough	 for	 the	Pawlendzios	 to	simply	

allege,	 as	 they	 did	 here, that	 Haddow	 owed	 them	 a	 duty; Haddow	 concedes	

that	 he	 did.	 	 Rather,	 the	 Pawlendzios had	 the	 burden	 of	 producing	 expertbased	evidence that	Haddow	in	fact	breached	that	duty.	

[¶15]		The	Pawlendzios	base	their	claims	on	the	fact	that	the	loans	made	

to	 them	by	 friends	and	relatives	lost	 their	protected	status	as	a	result	of	 the	

bankruptcy	 proceedings,	 contrary	 to	 Haddow’s	 advice.	 The	 Pawlendzios’	
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statement	of	material	fact #36	references	their	expert’s	opinion	that	Haddow	

should	 have	 advised	 Frank	 that	 creditors	 from	 his	 earlier	 corporate	

bankruptcy	could	potentially	assert claims against	him	because	he	personally	

guaranteed	 some	 of	 the	 corporation’s	 debts.	 There	 is	 no	 reference	 by	 the	

expert,	however,	to	what specifically Haddow	should	have	done	or	failed	to	do	

in	connection	with	the	Pawlendzios’	personal	bankruptcy	to	protect	the	loans	

of the	 three	 personal	 lenders. Further,	 there	 is	 no	 other	 proffered	 expert	

evidence	in	the	Pawlendzios’	statement	of	material	facts establishing	a	causal	

link	 between	 Haddow’s	 alleged	 breach	 of	 duty	 and	 the	 Pawlendzios’	 injury.	

For	these reasons, we	affirm.

The	entry	is:

Judgment	affirmed.

On	the	briefs:

Jed	Davis,	 Esq.,	 and	 Aglaia	Davis,	 Esq.,	Jim	Mitchel	 and	 Jed	

Davis,	 P.A.,	 Augusta,	 for	 appellants Frank	 and	 Beverly	

Pawlendzio

James	M.	Bowie,	Esq.,	Thompson	&	Bowie,	LLP,	Portland,	for	

appellee	Jon Haddow
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At	oral	argument:

Jed	Davis,	Esq.,	for	appellants Frank	and	Beverly	Pawlendzio

James	M.	Bowie,	Esq.,	for	appellee	Jon Haddow

Penobscot	County	Superior	Court	docket	number	CV-2012-104

FOR	CLERK	REFERENCE	ONLY