Sachs v. Downs Rachlin Martin PLLC

         On Appeal from Superior Court, Windsor Unit, Civil Division

          John P. Wesley, J. Katherine Burghardt Kramer of Katherine Burghardt Kramer Law Office LLC, Middlebury, and James L. Mulligan of Simpson & Mulligan PLLC, Lebanon, New Hampshire, for Plaintiff-Appellant.

          Robert D. Rachlin and Samantha V. Lednicky of Downs Rachlin Martin PLLC, Burlington, for Defendants-Appellees.

          PRESENT: Reiber, C.J., Skoglund, Carroll and Eaton, JJ., and Harris, Supr. J., Specially Assigned

          SKOGLUND, J.

         ¶ 1. After a bench trial, the trial court concluded that defendant- attorney's failure to adequately inform plaintiff Hannah Sachs of the risks of delay in filing a parentage action "negligently fell short of the standard of reasonably competent legal representation." Despite the court's conclusion that defendant breached her professional duty of care, the trial court determined that plaintiff failed to demonstrate direct causation or measurable damages as a result of defendant's negligent advice. On appeal, plaintiff challenges the court's legal conclusions and contends that the court's factual findings established both causation and damages. We agree, and so reverse.

         ¶ 2. Defendant's negligent advice occurred when plaintiff consulted her about filing parentage and child support actions in conjunction with plaintiff's pregnancy, which was the result of a brief relationship during the summer of 2010. When plaintiff informed the child's father of the pregnancy, he expressed his wish not to be involved with plaintiff and the child.

         ¶ 3. Three months before her daughter's birth, plaintiff visited the offices of Downs Rachlin Martin (DRM) and met with defendant. Plaintiff sought information regarding "establishing parentage, considerations of parental rights and responsibilities, and the determination of child support." Defendant advised against filing a paternity action immediately after the child's birth. Instead, she recommended waiting at least a year. According to defendant, delayed filing of a parentage action when the father had had no contact with the child could lessen any risk of the father seeking primary or joint physical and legal responsibility or a substantial amount of parent-child contact. Further, she advised, delay in filing would also limit his ability to use child custody as a negotiation tool to limit child support.

         ¶ 4. More significant in this case, defendant assured plaintiff that she would receive child support retroactive to the date of her child's birth. The court found defendant "did no specific research to support her opinion as to the retroactivity of child support, " instead relying on her experience as a family law attorney. Based on defendant's advice, plaintiff was persuaded to wait a year from child's birth before she filed a legal claim. She also arranged to receive, as a loan, $500 per month from her mother and $500 per month from one of her mother's friends after the child was born, to help her support her daughter. Plaintiff expected to repay the loans from her mother and the friend once the child support obligation was determined.

         ¶ 5. Plaintiff's daughter was born on July 12, 2011.

         ¶ 6. In June 2012, following through on defendant's advice to wait one year, plaintiff again contacted defendant to commence parentage and child support proceedings against the father. Four months later, in October 2012, defendant filed a parentage action.

         ¶ 7. At a case manager's conference in January 2013, the father stipulated that plaintiff was the sole physical and legal guardian of their daughter. The father agreed to contact his daughter only at plaintiff's discretion. Plaintiff was represented at the case manager's conference by a colleague of defendant, an associate attorney at DRM.

         ¶ 8. Either on the same day of the case manager's conference or some date closely following the conference, the associate attorney also discussed child support with plaintiff. During this discussion, the associate informed plaintiff that any child support award would be retroactive to the date the parentage action was filed, not the date of birth. Plaintiff protested that she had received different advice from defendant. The associate later followed up with plaintiff and confirmed that defendant still believed that a child support award would be retroactive to birth. Defendant reiterated this belief in a March 15, 2013 email to plaintiff, where she indicated that she was waiting for the court to approve the parentage and parental rights stipulation and stated that the order should be "finalized before we make any issue of child support."

         ¶ 9. Subsequently, several phone conversations took place in March 2013 between plaintiff and the father, and they agreed to meet at a playground in April 2013. During the conversation, Plaintiff said that she needed $2000 per month for childcare, and the father approved of the amount, but there was no discussion of retroactivity to the child's date of birth. Either in this conversation or in a later one, the father explained that if plaintiff maintained an amicable relationship with his family, plaintiff might even receive financial assistance above and beyond the assistance required for child support, but he warned that contentious litigation would turn his mother "into a mad dog."

         ¶ 10. Negotiations between defendant and the father's attorney revealed that the father would not agree to pay $2000 per month as plaintiff anticipated. Moreover, even though the parties ultimately agreed on $1875 per month for child support dating from the child support order, the father's attorney disagreed that the father should owe any payment in arrears, either from the date of the parentage action or the child's birth.

         ¶ 11. Given the father's attorney's stance, defendant finally researched the law governing child support arrears to confirm her position.^[1] At this point, defendant discovered that she had provided incorrect advice to plaintiff regarding retroactive child support. Instead, in a letter to plaintiff acknowledging her error, defendant explained that no definitive law authorized arrears back to a child's birth and the date of retroactivity was generally at the trial court's discretion. In practice, moreover, "courts use the date of filing as opposed to the date of birth." After receiving this letter, plaintiff told her mother's friend, "This is devastating news . . . . I can hardly see straight [sic] I'm so angry and upset."

         ¶ 12. Subsequently, in a letter to the father's attorney, defendant acknowledged that her research revealed that she had been mistaken about the date of retroactivity. In the same letter, defendant also wrote: "Without a doubt, had the rules on retroactivity of support been more clear, [plaintiff] would have filed a parentage action as soon as [her daughter] was born."

         ¶ 13. After further negotiations, the parties finally reached a stipulated child support agreement, which was approved as a Child Support Order on June 28, 2013. The agreement required the father to pay $1875 monthly to plaintiff beginning on July 1, 2013 and one lump sum payment for arrears. The arrears went back only so far as the filing of parentage action-$1625 was for child support, and $250 was for medical care. The agreement considered the father's gift income from family members, although this income was unpredictable and unreliable. Two worksheets computing calculations based on the Vermont Child Support Guidelines were included in the agreement. The first worksheet considered the father's trust income in child support calculation. In that scenario, the guidline child support would be $1060 per month. The second worksheet considered trust income and gift income in its calculation. There, the guildine child support would be $1562 per month.

         ¶ 14. After using the lump sum of arrears to partially repay the loans made by her mother and her mother's friend, plaintiff still owes $15, 000 on the loans they made to support plaintiff and her daughter and to pay plaintiff's legal fees.

         ¶ 15. Plaintiff filed legal malpractice and breach of contract claims against defendant in the Vermont Superior Court, Windsor Unit, Civil Division. Following a bench trial, the court concluded that "by failing to adequately give Plaintiff an explanation of the risk that, by following [defendant's] recommended strategy of delay, Plaintiff quite conceivably might be unable to establish retroactive child support, [defendant] negligently fell short of the standard of reasonably competent legal representation." However, the court determined that plaintiff failed to prove the negligent representation was a "cause-in-fact" of plaintiff's injury and that the evidence was "equivocal" as to whether plaintiff would have decided to file immediately had she been aware of the risk. It also found insufficient evidence for nonspeculative monetary damages.

         ¶ 16. On appeal, plaintiff claims that defendant provided negligent advice, that plaintiff relied on it to her detriment, and that she suffered nonspeculative damages. Defendant claims that even if she breached her duty of care, plaintiff has not ...