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David Nuyannes v. Nichole Thompson

March 27, 2012


The opinion of the court was delivered by: Buckwalter, S. J.


Currently pending before the Court are two separate Motions to Dismiss by Defendants Nichole Thompson, Esquire and Scott Galloway, Esquire. For the following reasons, the Motions are granted in part without prejudice and denied in part.


A. The Commencement of Plaintiff's Divorce Proceedings

According to the facts set forth in the First Amended Complaint, in August 2008, Plaintiff David Nuyannes's then-wife, Louise King, petitioned the Court of Common Pleas of Delaware County, Pennsylvania for Plaintiff to provide child and spousal support, despite the fact that King and Nuyannes still resided in their marital home with their two children. (Am. Compl. ¶ 10.) On September 12, 2008, Plaintiff petitioned for divorce and, approximately one week later, King sought a Protection from Abuse ("PFA") order claiming Plaintiff had made terroristic threats. (Id. ¶¶ 11--12.) As a result of that latter filing, Plaintiff was removed from the marital home pending a final PFA hearing. (Id. ¶ 13.) At the final PFA hearing, King informally withdrew her petition in exchange for exclusive possession of the home, with Plaintiff receiving unlimited visitation of their children, then eleven and fourteen. (Id. ¶¶ 12, 14.) Subsequently, however, King refused Plaintiff's access to the children and, in turn, Plaintiff filed a petition for custody. (Id. ¶¶ 15-16.) A hearing was held in November 2008, at which time Plaintiff was awarded custody of the children every other weekend and two nights per week upon Plaintiff obtaining suitable housing. (Id. ¶ 17.)

B. Facts Involving Defendant Nichole Thompson

King then moved for contempt claiming, among other things, that Plaintiff failed to make an approximate $10,000 payment to her. (Id. ¶ 18.) In anticipation of the contempt hearing scheduled for late December 2008, Plaintiff retained Defendant Nichole Thompson, Esquire. (Id. ¶ 19.) Thompson, acting on Plaintiff's behalf, filed a cross-contempt petition alleging, in part, that King refused to abide by Plaintiff's visitation rights. (Id. ¶ 20.) Just prior to the contempt hearing, Plaintiff and King resolved the petitions by mutual agreement. (Id. ¶ 21.) Nonetheless, to ensure the parties' compliance, the hearing was rescheduled to February 2009. (Id. ¶ 22.) When the mutual resolution of the petitions subsequently fell through, the parties prepared to proceed to the February hearing date. (Id. ¶ 23.) Because Plaintiff was to be out of the country on vacation, Plaintiff directed Thompson to file for an adjournment. (Id. ¶ 24.) She did so too late, however, and the hearing was held in Plaintiff's absence. (Id.)

At the hearing, Thompson conceded to the court that Plaintiff was in contempt of a December 2008 Order,*fn1 despite the fact that, according to Plaintiff, no such court order ever existed. (Id. ¶ 25.) As a result, Plaintiff was held in contempt and sentenced to six months in prison. (Id. ¶ 26.) Also at that February hearing, Thompson presented a motion to withdraw as counsel for Plaintiff, indicating that she did not want to practice divorce law anymore. (Id. ¶ 27.) The court directed Thompson to forward the contempt order to Plaintiff, who was not present, thus effectuating her withdrawal. (Id. ¶ 28.) At the same time, the court terminated Plaintiff's custody rights. (Id. ¶ 29.)

Subsequent to the hearing, Thompson did not forward a copy of the Order, as directed by the court, but rather sent an e-mail to Plaintiff inaccurately summarizing the proceeding. (Id. ¶30.) Most notably, she did not advise Plaintiff that his custody rights had been terminated. (Id. ¶ 32.) Unaware of this termination, Plaintiff took his daughter out for ice cream the following week during her school day, and returned her to school one hour later. (Id. ¶ 33.) As a result of this visitation, a warrant was issued for Plaintiff's arrest in March 2009. (Id. ¶ 34.) Thereafter, the Pennsylvania State Police, coordinated by Defendants John Doe and Gerard McShea, visited Plaintiff at Plaintiff's new girlfriend's house. (Id. ¶ 35.) At that time, Plaintiff discovered that his prior in-school visitation with his daughter on her fifteenth birthday caused a felony warrant to issue for his arrest for interference with custody of a child, i.e. kidnapping. (Id.) Plaintiff avers that McShea was and is Thompson's "paramour" acting at the behest of Thompson or in Thompson's violation of her and Plaintiff's attorney-client privilege. (Id. ¶ 36.) In June 2009, McShea seized Plaintiff's vehicle, which has yet to be returned. (Id. ¶ 37.) Thereafter, McShea coordinated multiple searches and seizures of Plaintiff's girlfriend's and Plaintiff's parents' homes, as well as stopping and pulling over his girlfriend in her vehicle. (Id. ¶ 38.) Through a "sting operation" orchestrated by McShea, on July 13, 2009-Thompson's birthday-Plaintiff was arrested at his then-lawyer's office and imprisoned for approximately six months. (Id. ¶ 39.)

In January 2010, Plaintiff successfully argued that both the contempt and interference charges were legally impossible, and was released from prison pending trial. (Id. ¶ 40.) In May 2010, the kidnapping charges were "nolle prossed."

C. Facts Involving Defendant Scott Galloway

Shortly after Thompson's withdrawal as counsel in February 2009, Plaintiff retained Defendant Scott Galloway, Esquire. (Id. ¶ 42.) Unaware of the custody termination order at that time, Plaintiff directed Galloway only to move for reconsideration and/or appeal of the contempt order. (Id. ¶ 43.) Thereafter, Galloway refused ongoing representation, at which point Plaintiff terminated him. (Id. ¶ 44.) Nonetheless, Galloway remained formal counsel to Plaintiff and refused to execute a withdrawal and substitution of appearance until the end of the thirty-day time period for seeking either reconsideration and/or appeal. (Id. ¶ 45.) This late filing of Galloway's substitution of appearance effectively precluded him from retaining other counsel to file for reconsideration and/or appeal. (Id. ¶ 46.) Prior to that time, Galloway had done nothing to represent Plaintiff or protect his rights. (Id. ¶ 47.)

D. Claimed Damages

Before June 2008, Plaintiff was the director of finance and accounting at "Mother's Work"-a maternity clothes retailer-earning approximately $140,000 per year. (Id. ¶ 48.) Due to a corporate reorganization in June 2008, Plaintiff, along with many other employees, was laid off. (Id. ¶¶ 49--50.) At a child support hearing in January 2009, Thompson failed to argue against a child support order, wherein Plaintiff was required to pay $1,900 per month, when he was only earning $1,800 per month in unemployment. (Id. ¶ 51.) In turn, as a result of his arrest and incarceration, as well as the child support arrearages affecting his credit score, Plaintiff has been unable to find employment. (Id. ¶ 52.) Most drastically, Plaintiff sustained the termination of his parental rights over his children. (Id. ¶ 53.)

E. Procedural History

On March 24, 2011, Plaintiff initiated the current lawsuit against Defendants Nichole Marie Thompson, Esquire, Eugene Malady, Esquire (King's attorney), and Scott D. Galloway, Esquire. On September 19, 2011, he filed his First Amended Complaint, this time against only Defendants Thompson, Galloway, and John Does 1--10. This pleading sets forth four causes of action as follows: (1) professional negligence/malpractice against Defendants Galloway and Thompson (id. ¶¶ 55--58); (2) breach of contract/covenant of good faith and fair dealing against Defendants Galloway and Thompson (id. ¶¶ 59--62); (3) breach of fiduciary duty against Defendants Galloway and Thompson (id. ¶¶ 63--66); and (4) violation of the Fourth and Fourteenth Amendments to the United States Constitution (malicious prosecution) against Defendant Thompson. (Id. ¶¶ 67--73.)

In compliance with Pennsylvania Rule of Civil Procedure 1042.3, Plaintiff filed and served Certificates of Merit on both Defendants Galloway and Thompson on December 15, 2011. Thereafter, on January 4, 2012, Defendant Galloway filed a Motion to Dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Defendant Thompson followed suit with her own Rule 12(b)(6) Motion, filed on January 19, 2012. On March 8, 2012, Plaintiff responded to both Motions, making them ripe for judicial consideration.


Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. Following these basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009), subsequently defined a two-pronged approach to a court's review of a motion to dismiss. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., 129 S. Ct. at 1949. Thus, although "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Second, the Supreme Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. "Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. A complaint alleges, but does not show, an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id.; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232--34 (3d Cir. 2008) (holding that: (1) factual allegations of complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the proscribed conduct; and (3) the complaint's "'factual allegations must be enough to raise a right to relief above the speculative level.'") (quoting Twombly, 550 U.S. at 555).

Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).


Both parties in the present action move to dismiss all claims against them. The Court considers each cause of action individually.*fn2

A. Professional Negligence Claim

As a primary matter, Defendants Thompson and Galloway challenge the core of the action against them-the professional negligence claim. "Under Pennsylvania law, clients may bring tort actions against professionals who do not provide the client with services consistent with the standard expected of the profession." In re Am. Life Investors Ins. Co. v. Annuity Mktg. & Sales Practices Litig., Nos. Civ.A.04-2535, 05-2101, 05-3588, 2007 WL 2541216, at *32 (E.D. Pa. Aug. 29, 2007). The action is limited to attorneys, as well as other specific groups of persons licensed in Pennsylvania or another state. Id. (citing Pa. R. Civ. P. 1042.1). The elements of a professional negligence cause of action against an attorney include: (1) employment of the attorney or other basis for duty; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such failure proximately caused damage to the plaintiff. Kituskie v. Corbman, 714 A.2d 1027, 1029 (Pa. 1998). Via the present Motions, Defendants take issue with each of these elements. For clarity of discussion, the Court individually discusses the elements as applied to each Defendant.

1. Duty and Breach

a. Defendant Thompson

Defendant Thompson*fn3 first argues that any duty owed to Plaintiff ended upon her termination as counsel, meaning that she cannot be liable for any alleged errors made after that time. She reasons that, according to the original Complaint, both Plaintiff and Defendant Thompson agreed, during a January 15, 2009*fn4 meeting, that Thompson would no longer represent Plaintiff, but would still file the Praecipe to Withdrawal of the Complaint in Divorce and Custody. (Def. Thompson's Mem. Supp. Mot. to Dismiss 6 (citing Compl. ¶ 38).) Both the Praecipe to Withdrawal and the Motion to Withdraw as Counsel were filed on January 23, 2009, meaning that she owed no further duty to Plaintiff as of that date. As the sum of Plaintiff's professional negligence claim alleges conduct after that date, she concludes that she committed no professional negligence.

This argument, however, incorrectly circumscribes the scope of Thompson's legal duty as Plaintiff's counsel. The existence of an established attorney-client relationship satisfies the first element of duty between an attorney and client. Cost v. Cost, 677 A.2d 1250, 1253--54 (Pa. Super. Ct. 1996) (holding that "[o]ur Supreme Court retained privity (an attorney-client or analogous professional relationship, or specific undertaking as an element of proof necessary to maintain an action in negligence for professional malpractice") (internal quotations omitted). That duty persists until appropriate withdrawal is accomplished under Pennsylvania law. Fraternal Order of Police, Lodge No. 5 v. City of Phila., 655 A.2d 666, 668 (Pa. Commw. Ct. 1995) ("Under [Pa. R. Civ. P. 1012], an attorney remains of record until an order of court allows the attorney's withdrawal or another attorney simultaneously enters an appearance when the original attorney withdraws."); see also Commonwealth v. White, 871 A.2d 1291, 1294 (Pa. Super. Ct. 2005) ("[O]nce counsel has entered an appearance on a defendant's behalf he is obligated to continue representation until the case is concluded or he is granted leave by the court to withdraw his appearance."). Under Pennsylvania Rule of Conduct 1.16, "[e]xcept as stated in paragraph (c), a lawyer shall not represent a client or, where the representation has commenced, shall withdraw from the representation of a client if: . . . (3) the lawyer is discharged." Pa. R. Prof. Conduct 1.16(a). Nonetheless, an attorney "must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation." Pa. R. Prof. Conduct

1.16(c). Pennsylvania Rule of Civil Procedure 1012(b) goes on to provide that:

(b)(1) Except as provided in paragraph (2), an attorney may not withdraw his or her appearance without leave of court.

(2) An attorney may withdraw his or her appearance without leave of court if another attorney (I) has previously entered or (ii) is simultaneously entering an appearance on behalf of the party, and the change ...

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