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McIntire v. Lee2/19/2003
Carroll
Argued: November 13, 2002
The defendants, Susan H. Lee and Fay E. Melendy, appeal from a jury verdict finding them liable for legal malpractice in their representation of the plaintiff, Robert McIntire. Specifically, they argue that the Superior Court (O'Neill, J.) erred by: 1) allowing the plaintiff's expert witness to render an opinion that was not disclosed prior to trial; 2) allowing the plaintiff to satisfy his burden of proving the trial within a trial through expert testimony; 3) admitting into evidence an affidavit prepared by one of the defendants in the underlying case; and 4) failing to find the defendants immune from malpractice under the doctrine of judgmental immunity. We affirm.
Based upon the record, the jury could have found the following facts. The plaintiff is the owner of a machine shop called Hillside Machine, which he started in 1973. In the spring of 1987, Catherine Woodall offered to serve as the plaintiff's sales representative. The plaintiff orally agreed to pay her a ten percent commission for any business she brought him. There was no discussion as to the length of the agreement or under what circumstances it could be terminated. The plaintiff understood at the time of the agreement that, as his representative, Woodall would, among other things, maintain regular contact with customers, deliver parts as needed and seek additional accounts from different companies.
Woodall brought the plaintiff business from a company called Varian Extrion. She told the plaintiff that she was servicing the Varian account and looking for additional accounts. The plaintiff paid Woodall a commission for approximately two years for business received from Varian. In the spring of 1989, however, the plaintiff, having not received any new accounts and being generally unsatisfied with Woodall's performance, threatened to terminate their contract.
Shortly thereafter, the plaintiff met with Attorney Fay Melendy to discuss his rights under the contract. Susan Lee was a law student who worked as a law clerk in Melendy's office. Lee was admitted to practice as an attorney in New Hampshire in November 1990. After reviewing Lee's research into the plaintiff's case, Melendy concluded that he could lawfully terminate his contract with Woodall. Subsequently, in May 1989, Lee sent a letter to Woodall advising her that she had been fairly compensated and that her agreement with the plaintiff was terminated.
In December 1989, Melendy filed a petition for declaratory judgment on behalf of the plaintiff. In response, Woodall filed a counterclaim arguing that the contract was enforceable and that she was entitled to commissions for as long as the plaintiff continued to do business with Varian. In her answer, Woodall agreed that she was acting as a sales representative for the plaintiff. Contrary to the plaintiff's understanding of the contract, however, Woodall argued that she had no obligations except to introduce the plaintiff to Varian.
The defendants sent interrogatories to Woodall in March 1992 and June 1993. Based upon Woodall's answers to those interrogatories, Lee interviewed two machine shop owners in Massachusetts who had prior contractual relationships with Woodall similar to the plaintiff's contract. One of these businesses, Mair-Mac Machine, was involved in a similar contract dispute with Woodall. Lee contacted the attorney for Mair-Mac Machine to discuss the Massachusetts litigation, but did not request the underlying complaint or any discovery in the case. Woodall had answered a set of interrogatories in the Mair-Mac case dated June 30, 1993.
In the summer of 1993, the defendants filed a motion for su
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