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Wheeler v. White, corrected 6-5-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 	1998 ME 137
Docket:	Yor-97-289
Argued:	February 2, 1998
Decided:	June 4, 1998

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
Majority:	WATHEN, C.J., and ROBERTS, CLIFFORD, and RUDMAN, JJ.
Dissenting:	DANA, and LIPEZ, JJ.
FREDERICK WHEELER v. RUSSELL B. WHITE

RUDMAN, J.

	[¶1]  Frederick Wheeler appeals from the judgment entered in the
Superior Court (York County, Crowley, J.) following a jury verdict in favor of
Russell B. White.  Wheeler contends that the trial court erroneously
instructed the jury on the issue of causation.  Because we conclude that the
jury charge in its entirety did not prejudice Wheeler, we affirm the
judgment.
I.
	[¶2]  Wheeler initiated this action against his former attorney, Russell
White, alleging negligent representation, breach of contract, and negligent
infliction of emotional distress.  In February of 1992, Wheeler engaged White
to assist him in leasing commercial property located in York.  Wheeler
testified that he informed White that the property's owner was experiencing
financial difficulties, that Fleet Bank held a mortgage on the property, and
that Wheeler wanted to secure a long-term lease.  Wheeler and White agreed
that White would prepare a lease and would record a memorandum thereof. 
White advised Wheeler that "[t]he memorandum of lease is a good idea
because recording this would give you better protection against a possible
foreclosure."  White acknowledged that he did not counsel Wheeler as to the
advisability of his obtaining either a subordination agreement or
nondisturbance agreement.
	[¶3]  In May of 1994, Wheeler learned from a friend that the leased
premises was to be auctioned as a result of a foreclosure.  Wheeler then
contacted White, who admitted that he had recorded neither the lease nor
the memorandum of lease but indicated that he would do so promptly.  The
property eventually was auctioned, and although Wheeler attempted to
purchase it, he could not.  In December of 1994, Wheeler surrendered the
leased premises.
	[¶4]  At trial, Wheeler testified that if "White had told [him] back in
1992, in February of 1992 that [he] could be evicted by an existing mortgage
holder, and that the memorandum of lease would not protect [him]," then
he would not have leased the premises.  He also testified that if White had
indicated that a subordination or a nondisturbance agreement would have
provided some protection, then he would have instructed White to negotiate
such an agreement with Fleet Bank.
	[¶5] White conceded that a subordination or nondisturbance
agreement can protect a lessee from eviction in the event of a bank
foreclosure whereas a memorandum of lease does not protect against
foreclosure.  White testified, however, that his prior dealings with Fleet
Bank had given him the impression that the bank generally does not enter
into subordination agreements.  He also opined that Wheeler's
circumstances were not likely to facilitate the negotiation of a subordination
agreement because "he was already in the property" and because "he wasn't
presenting a large financial benefit to an institution."  He testified that when
he met with Wheeler in February of 1992, Wheeler had already moved into
the leased premises.
	The court instructed the jury, in relevant part, as follows:
in this case Frederick Wheeler, the Plaintiff, has claimed that the
Defendant, Russell White, negligently caused his injuries.  In order to
prevail in this action for legal malpractice, the Plaintiff must prove by a
preponderance of the evidence that the Defendant, Russell White
committed professional negligence in his representation of the
Plaintiff by deviating from the appropriate standard of care as you find
it from the testimony of the attorneys in this case . . . .  Two, but for
Defendant's professional negligence the Plaintiff would not have taken
the tenancy or would not have lost his tenancy in the property he
leased . . . .  And, three, that the Defendant's negligence was a
proximate cause of the total loss or damages claimed by the Plaintiff
Frederick Wheeler.

	. . . . 

	If the Plaintiff, Frederick Wheeler, does not satisfy you by a
preponderance of the evidence that the Defendant, Russell White,
committed negligent conduct back in 1992, then the case is over . . . . 
If the Plaintiff, Frederick Wheeler, does satisfy you by a preponderance
of the evidence that the Defendant was negligent, you must next
consider proximate cause.  Let me explain that term to you.

	Negligence is the proximate cause of damage if it plays a
substantial part in causing the damage and the damage is a direct
result of the negligence or the damage was a reasonably foreseeable
result of the negligence.  A loss may have more than one legal or
proximate cause.  Two or more persons or things may act together
independently or together to cause injury or damage.  And in such a
case each may be a legal cause.  If the Plaintiff, Frederick Wheeler,
does not satisfy you by a preponderance of the evidence that Russell
White's negligence was the proximate cause of his damages, the case
will be over.  If, however, the Plaintiff has satisfied you by a
preponderance of the evidence of both negligence and proximate
cause against Russell White, then before you consider Frederick
Wheeler's damages you must first consider the defense of contributory
negligence that's been raised by the Defendant Russell White.

	The Defendant here, through his attorney, contends that the
Plaintiff, Frederick Wheeler, negligently caused his own injuries.  This
is a defensive claim and the burden of proof on this claim by a
preponderance of the evidence is on the Defendant . . . if you find in
favor of the Defendant, Russell White, on his defensive claim of
contributory negligence, then you must next apply our law of
comparative negligence to apportion the relative fault or responsibility
for the damage.
The jury returned a verdict in favor of White, unanimously responding in the
negative to the first question on the special verdict form, "[w]as defendant
Russell White negligent, and was his negligence a proximate cause of injury
and damages to Plaintiff Frederick Wheeler."  This appeal followed.
II.
	[¶6] "We review jury instructions 'in their entirety to determine if
they are adequate, taking into consideration the total effect created by the
instructions and the potential for jury misunderstanding.'"  Thompson v.
Pendleton, 1997 ME 127, ¶ 13, 697 A.2d 56, 59 (quoting Adamatic v.
Progressive Baking Co., 667 A.2d 871, 874 (Me. 1995)).  An error in a jury
instruction does not constitute reversible error unless it results in
prejudice.  See Adamatic v. Progressive Baking Co., 667 A.2d 871, 874 (Me.
1995).  
	[¶7]  The burden on the trial court in this case was to instruct the jury
properly with respect to the causation element of a legal malpractice claim. 
As in all actions in tort, an essential element of the plaintiff's cause of action
is that there be some reasonable connection between the act or
omission of the defendant and the damage which the plaintiff
has suffered.  This connection usually is dealt with by the courts
in terms of what is called "proximate cause," or "legal cause." 
There is perhaps nothing in the entire field of law which has
called forth more disagreement, or upon which the opinions are
in such a welter of confusion.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 263 (5th
ed. 1984).  As noted by Dean Zillman and his colleagues in Maine Tort Law,
"[t]he issue of proximate cause has fascinated and baffled generations of
lawyers, academics, and jurists."  See Zillman, Simmons & Gregory, Maine
Tort Law  § 7.12 at 7-29 (3d ed. 1997). 
	[¶8]  We observed in Spickler v. York that "[i]n a malpractice action, as
in any other action based on negligence, a negligent act . . . is a legal cause of
harm to such other person if 'the actor's conduct is a substantial factor in
bringing about the harm.'"  566 A.2d 1385, 1390 (Me. 1989) (quoting Wing
v. Morse, 300 A.2d 491, 496 (Me. 1973)) (emphasis in original).  Thus, in a
legal malpractice case, once a plaintiff demonstrates that the defendant
attorney was negligent, the plaintiff must show that that negligence actually
and proximately caused his or her injury.  The trial court instructed the jury:
"[i]n order to prevail in this action for legal malpractice, the Plaintiff must
prove by a preponderance of the evidence that . . . .  Two, but for
Defendant's professional negligence the Plaintiff would not have taken the
tenancy or would not have lost the tenancy in the property he leased."  
White argues that our case law supports the court's instruction, citing Sohn
v. Bernstein, 279 A.2d 529, 532 (Me. 1971), Schneider v. Richardson, 411
A.2d 656, 658 (Me. 1979), and McAlister v. Slosberg, 658 A.2d 658, 660
(Me. 1995).  We note, however, that the cases cited by White do not involve
an allegation of contributory negligence on the part of the plaintiff.  As
Professor Prosser notes:
Restricted to the question of causation alone, and regarded
merely as a rule of exclusion, the "but for" rule serves to explain
the greater number of cases; but there is one type of situation in
which it fails.  If two causes concur to bring about an event, and
either one of them, operating alone, would have been sufficient
to cause the identical result, some other test is needed. 
Keeton et al., supra, at 266.

	[¶9]  The trial court's use of a "but for" instruction was ill-advised, for
this is a case in which two causes may have occurred to bring about an event
and either one of them, White's negligence or Wheeler's contributory
negligence, would have been sufficient to cause the result.
	[¶10]  Professor Prosser suggests the "substantial factor" formulation
to be an improvement over the "but for" rule.  We agree.  In this case,
evidence was presented upon which a jury could have found White negligent
and Wheeler contributorily negligent.  The court correctly instructed the
jury that "negligence is the proximate cause of damage if it plays a
substantial part in causing the damage and the damage is a direct result of
the negligence or the damage was a reasonably foreseeable result of the
negligence."  The court went on to instruct the jury on the law of
comparative negligence and explained how they should complete the jury
verdict form.  Wheeler argues that the jury was misled by the court's
unfortunate use of the "but for" instruction.  Wheeler asserts that the "but
for" instruction implied that for him to recover the jury had to conclude
that White's negligence was the sole cause of his damages.  The jury was,
however, fully instructed upon the principles of comparative negligence.  On
the record presented to us, we cannot conclude that the jury was misled. 
See Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144, 1149 (Me. 1983). 
Reading the jury instructions in this case in their entirety, we find them to
be adequate and, taking into consideration the total effect created by these
instructions, we conclude that there was no potential for jury
misunderstanding.
	The entry is:
Judgment affirmed.

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