Karen A. Oliveira v. Ashley L. Levesque ( 2023 )

June 9, 2023 Supreme Court
No. 2022-45-Appeal.
(PC 20-8274)
Karen A. Oliveira :
v. :
Ashley L. Levesque. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2022-45-Appeal.
(PC 20-8274)
Karen A. Oliveira :
v. :
Ashley L. Levesque. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Ashley L. Levesque,
appeals pro se from a Superior Court judgment in favor of the plaintiff, Karen A.
Oliveira, following the grant of the plaintiff’s motion for summary judgment.1 This
case came before the Supreme Court pursuant to an order directing the parties to
appear and show cause why the issues raised in this appeal should not be summarily
decided. After considering the parties’ written and oral submissions and reviewing
the record, we conclude that cause has not been shown and that this case may be
decided without further briefing or argument. For the reasons set forth herein, we
affirm the judgment of the Superior Court.
1
Like defendant, plaintiff is proceeding pro se before us. We note, however, that
plaintiff is a practicing attorney in Rhode Island.
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I
Facts and Procedural History
This dispute arises from an ill-fated attorney-client relationship. The
relationship dissolved in July 2020, and subsequently, on November 30, 2020,
plaintiff filed a complaint in Providence County Superior Court alleging breach of
contract and seeking to recover $12,907.92 for unpaid services provided to
defendant. The plaintiff also claimed that she was entitled to statutory interest,
attorneys’ fees, and costs of suit.
The plaintiff’s attorney-client relationship with defendant began on January
13, 2020, after defendant contacted plaintiff to obtain representation in a divorce
proceeding. The defendant agreed to the terms and conditions of plaintiff’s services
that are reflected in a letter of representation dated January 11, 2020.
Under the terms of the letter of representation, defendant was required to
submit a $5,000 retainer fee to plaintiff to be deposited into a client escrow account.
The plaintiff would “then bill against said retainer until it is exhausted.” The letter
of representation stated that, “[i]f [plaintiff’s] fees and expenses exceed[ed] the
amount that [defendant] deposited in [the client] escrow account thereby depleting
the retainer amount,” plaintiff would “require that [defendant] make additional
advances” to “complete subsequent stages of legal representation of [the] matter.”
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On January 13, 2020, defendant paid plaintiff an initial $5,000 retainer. By
February 28, 2020, defendant’s initial retainer was exhausted, and she had incurred
an additional $3,414.92 balance for plaintiff’s professional services and other
charges. On April 9, 2020, defendant provided plaintiff with a second $5,000
retainer.
The impetus of the breakdown of the parties’ relationship occurred on July 2,
2020, when defendant received a second invoice for services provided from
February 28 through May 26, 2020. In addition to the second $5,000 payment
having been exhausted, an additional $8,176.92 had been incurred. The plaintiff
also informed defendant that she should expect a third invoice for services provided
after May 26, 2020.
That same day, defendant relayed her frustrations to plaintiff concerning the
fact that she had already spent $10,000 and felt that her “case [was] in worse shape
than when it started.” The defendant also told plaintiff that she was unaware that
“[she] had depleted [her] second $5,000 retainer” and that the bill was “unacceptable
as [defendant] would not have authorized [plaintiff] to spend over the $10,000 in
retainer funds [that defendant had] already provided [plaintiff].”
On July 7, 2020, defendant informed plaintiff that she “had retained a new
attorney and was terminating [plaintiff’s] services.” Subsequently, plaintiff sent
defendant a third and final invoice for services provided from May 27, 2020, through
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July 8, 2020. In addition to the $8,176.92 outstanding from the second invoice,
plaintiff billed defendant an additional $4,731 for services rendered since May 27,
2020. The ultimate unpaid balance was $12,907.02.
The defendant filed a response to plaintiff’s complaint on December 21, 2020.
In the response, defendant asserted that, before plaintiff brought suit against her, she
attempted to contact plaintiff to discuss and challenge the outstanding charges. The
defendant further claimed that she “diligently tried to come to some financial
resolution with [plaintiff] but she [did] not respond.” The defendant also stated that
“[plaintiff] refuse[d] to speak with [her].”
On January 25, 2021, plaintiff sent defendant four requests for admission
regarding plaintiff’s services and the associated invoices for defendant’s legal
expenses. In the first request for admission, plaintiff requested that defendant admit
to the following:
(1) “[T]he defendant * * * retained the services of the
plaintiff, Karen A. Oliveira, on January 13, 2020[,] for the
purpose of representation in a matter within the Rhode
Island Family Court.
(2) “[T]he defendant * * * executed the attached Letter of
Representation * * *.
(3) “[The] Letter of Representation provides that if a
collection action needs to be undertaken under the
agreement, that you will pay all costs of collection,
including court costs and reasonable attorney’s fees
incurred in the collection.
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(4) “[T]he defendant * * * received legal services provided
by the plaintiff and the matter within the State of Rhode
Island Family Court.”
The plaintiff also requested that defendant admit that she received the three
invoices for services provided from (1) January 11 through February 28, 2020; (2)
February 28 through May 26, 2020; and (3) May 27 through July 8, 2020. The
defendant returned the first request for admission with “yes” handwritten beside
each of the statements. The defendant failed to return any of the remaining requests
for admission.2
On March 11, 2021, plaintiff filed a motion for summary judgment. The
plaintiff submitted a memorandum and affidavit in support of her motion; attached
to the affidavit were copies of plaintiff’s requests for admission and defendant’s
response. The defendant did not file an objection or otherwise respond to the motion.
After several attempts to reschedule the hearing to accommodate defendant, a
hearing on the motion was held on June 21, 2021. The defendant failed to appear at
the hearing.
2
Rule 36(a) of the Superior Court Rules of Civil Procedure permits a party to serve
upon any other party written requests for admission, requiring that “[e]ach matter of
which an admission is requested * * * be separately set forth.” The “matter is
admitted unless, within thirty (30) days after service of the request, * * * the party
to whom the request is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter * * *.” Super. R. Civ. P. 36(a).
In the case at bar, defendant’s failure to respond rendered the matters admitted as a
matter of law. See id.
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In a letter filed with this Court, defendant “implor[ed] the [C]ourt [to] consider
[her] side of the story, since [she] was not present in court on June 21.” According
to defendant, she did not attend the hearing because, “based on written
communication” with plaintiff, she was under the impression that she and plaintiff
had settled.
The defendant claims that, although her new attorney is not representing her
in this matter, he had assisted her by speaking with plaintiff and conveying
defendant’s offer to settle the instant action for $8,000. The plaintiff responded
“with a letter stating she would entertain the settlement if [defendant] removed [a
negative] google review” written by defendant about plaintiff.
The plaintiff included this letter, dated June 8, 2021, in her papers before this
Court. Indeed, in the letter plaintiff states, “Before I entertain resolving the Superior
Court case with you, I will need proof that you contacted Google and remove [sic]
this post. In addition, I need a stipulation that you will refrain from any further social
media or other posts.”
After removing the Google review and sending proof to plaintiff, defendant
states that she repeatedly attempted to confirm the next steps for settling the matter.
Shortly before the summary-judgment hearing was held on June 21, 2021, defendant
claims to have emailed plaintiff to remind her that they were “scheduled for court
and asked whether [plaintiff] was withdrawing her motion based on [defendant’s]
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removal of the google review[,]” but defendant never received a response. Finally,
on the morning of the summary-judgment hearing, defendant also claims to have
attempted to contact plaintiff when she realized plaintiff’s motion was never
withdrawn, but plaintiff never responded.
At the hearing, when defendant did not appear, the hearing justice issued a
bench decision granting plaintiff’s unopposed motion for summary judgment. On
June 28, 2021, final judgment entered in favor of plaintiff. The defendant filed a
timely notice of appeal on July 7, 2021. On July 26, 2021, a writ of execution was
issued for the judgment.
II
Standard of Review
“This Court will review the grant of a motion for summary judgment de novo,
employing the same standards and rules used by the hearing justice.” Regan Heating
and Air Conditioning, Inc. v. Arbella Protection Insurance Company, Inc., 287 A.3d
502, 506 (R.I. 2023) (quoting Dulong v. Merrimack Mutual Fire Insurance
Company, 272 A.3d 120, 125 (R.I. 2022)). “We will affirm a summary judgment if,
after reviewing the admissible evidence in the light most favorable to the nonmoving
party, we conclude that no genuine issue of material fact exists and that the moving
party is entitled to judgment as a matter of law.” Id. at 507 (quoting Borgo v.
Narragansett Electric Company, 275 A.3d 567, 571 (R.I. 2022)).
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“A party opposing a motion for summary judgment bears the burden of
proving by competent evidence the existence of a disputed issue of material fact and
cannot rest upon mere allegations or denials in the pleadings, mere conclusions or
mere legal opinions.” Regan Heating and Air Conditioning, Inc., 287 A.3d at 507
(quoting Andrade v. Westlo Management LLC, 276 A.3d 393, 399 (R.I. 2022)).
Finally, although “pro se litigants are often granted greater latitude by [a] court,”
they are not exempt from our rules. Terzian v. Lombardi, 180 A.3d 555, 558 (R.I.
2018) (brackets omitted) (quoting Jacksonbay Builders, Inc. v. Azarmi, 869 A.2d
580, 585 (R.I. 2005)). The “courts of this state cannot and will not entirely overlook
established rules of procedure, adherence to which is necessary so that parties may
know their rights, that the real issue in controversy may be presented and determined,
and that the business of the courts may be carried on with reasonable dispatch.” Id.
at 559 (brackets omitted) (quoting Jacksonbay Builders, Inc., 869 A.2d at 585).
III
Discussion
The defendant’s failure to have objected to plaintiff’s motion for summary
judgment or to have submitted evidence that demonstrates that she did not owe the
legal expenses claimed by plaintiff frustrates our ability to provide meaningful
review. See Regan Heating and Air Conditioning, Inc., 287 A.3d at 507. Instead,
we are constrained by the facts before the hearing justice. See id. Based upon the
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parties’ letter of representation, defendant’s admissions, and the invoices submitted
by plaintiff, we find that there is no disputed issue of material fact, and that,
therefore, defendant is liable for the outstanding balance due as payment for
plaintiff’s services.3
Thus, the hearing justice did not err in granting the plaintiff’s motion for
summary judgment.
IV
Conclusion
Accordingly, we affirm the judgment of the Superior Court. The record may
be returned to the Superior Court.
3
The defendant admits that failing to appear at the summary judgment hearing was
“a major lack of judgment and error on [her] part.” Nevertheless, we note that we
are troubled by the circumstances before us. The defendant makes serious
allegations that plaintiff was fraudulent in her billing practices, failed to timely
notify defendant of mounting fees, and did not participate in settlement discussions
in good faith. We are of the opinion that these circumstances exacerbated the legal
morass defendant finds herself in today.
The Court is aware that Family Court matters can be contentious and
complicated, oftentimes resulting in staggering attorneys’ fees. Unfortunately,
defendant’s acrimonious divorce proceeding appears to be such a matter. Be that as
it may, plaintiff failed to provide defendant with invoices for over four months. The
defendant was, therefore, unaware that she was accumulating over $12,000 in fees
and expenses. The plaintiff then refused to engage in settlement discussions with
defendant, even after defendant satisfied plaintiff’s demand that the negative Google
review be removed. It is obvious to us that, at any point, plaintiff could have acted
to avoid or mitigate this conflict. Attorneys, as officers of the court, should be wary
of the sometimes-one-sided battle a former client faces when embroiled in a dispute
with an attorney and should conduct themselves accordingly.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case Karen A. Oliveira v. Ashley L. Levesque.
No. 2022-45-Appeal.
Case Number
(PC 20-8274)
Date Opinion Filed June 9, 2023
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Richard D. Raspallo
For Plaintiff:
Karen Auclair Oliveira, pro se
Attorney(s) on Appeal
For Defendant:
Ashley L. Levesque, pro se
SU-CMS-02A (revised November 2022)